House of Commons
Tuesday 21 November 2017
The House met at half-past Eleven o’clock
[Mr Speaker in the Chair]
Oral Answers to Questions
Foreign and Commonwealth Office
The Secretary of State was asked—
I call Mr Chris Bryant. Not here.
Commonwealth Summit: London
We are delighted to be hosting next year’s Commonwealth Heads of Government meeting, which will be one of the biggest summits that the UK has ever hosted. All the venues have been agreed, all member states have confirmed that they will be sending high-level delegations, and we are discussing an ambitious agenda. We want a great celebration for the Commonwealth that is underpinned by real substance, and we are working closely with young people from across the Commonwealth to put youth at the heart of the summit.
I thank the Foreign Secretary for that response. The summit provides a real opportunity for young people. Given that 40% of the world’s young people live in the Commonwealth, what more can the Department do to nurture aspiration and create opportunity in the interests of prosperity, democracy and peace across our Commonwealth partners?
I thank my hon. Friend for putting his finger on the huge opportunity to focus on young people that the Commonwealth summit provides. We should focus in particular on the education of young women and girls. That presents an opportunity to change lives most dramatically across all Commonwealth countries, and indeed across the world, and to promote the objectives of freedom, opportunity, democracy and peace to which he rightly subscribes.
I am delighted that we are hosting the Commonwealth summit next year. Following the most recent meeting of the United Nations Human Rights Council and in relation to our bilateral relationship with Sri Lanka, will the Foreign Secretary take this opportunity to reiterate our Government’s position that the Sri Lankan Government must ratify the Rome statute of the International Criminal Court and that international judges and prosecutors are involved in the prosecution of historical war crimes in Sri Lanka in order to build confidence that war crimes will be properly investigated and prosecuted?
I have indeed raised those questions with my opposite number and with the Sri Lankan Government. We believe that they are making progress, but we will continue to insist that more needs to be done.
With 2.4 billion people and some of the fastest growing economies in the world, my hon. Friend is entirely right that the 52 countries of the Commonwealth represent a superb opportunity for this country to do free trade deals. However, that does not mean that we will necessarily be in any way relaxing our desire to do a fantastic free trade deal with our European friends and partners. We believe that this can be a win-win.
I wonder whether the Commonwealth summit will be discussing the welcome appointment of an Indian judge to the International Court of Justice at the expense of a judge from the United Kingdom. Perhaps the summit will therefore also discuss how that is another sign of the sun setting on “Empire 2.0” before it has even risen.
On the contrary, I am sure that the whole House will join me in congratulating the Indian judge on his election. I am sure that the House will also agree that it is a fine thing that another common-law judge has joined the International Court of Justice.
I refer the House to my entry in the Register of Members’ Financial Interests as the deputy chairman of the Commonwealth Enterprise and Investment Council. Does my right hon. Friend agree that a positive way of showing how a post-Mugabe Zimbabwe could be rehabilitated into the international community would be for it to attend the next Commonwealth summit as a rejoined member? To that end, will the Foreign Secretary begin to have discussions with his partners in the Commonwealth and with the Commonwealth secretary-general to ensure that there is a path to new membership for a post-Mugabe Zimbabwe?
My right hon. Friend rightly sets out what would be a fine and noble aspiration both for the Commonwealth and for Zimbabwe, but I must caution him that several steps need to be gone through before that can happen. There must be free and fair elections next year, and it then falls to Zimbabwe to apply to the Commonwealth secretariat and to make it clear to the Commonwealth and the world that Zimbabwe fulfils the criteria on human rights, rule of law and democracy that are necessary for Commonwealth membership.
Will the Secretary of State further outline the discussions he has had with the Secretary of State for Exiting the European Union on the need for a solidified trade deal between the 52 Commonwealth countries, including Pakistan, India, Australia and New Zealand as four examples? Does he agree that must be a priority for London 2018?
I fully support the hon. Gentleman’s aspiration. Free trade deals and the prospect of increased trade with our Commonwealth friends and partners will, indeed, be at the heart of the summit next year.
Prior to the Commonwealth Heads of Government meeting, parliamentarians from across the Commonwealth will meet in February, organised by the Commonwealth Parliamentary Association. Will the Foreign Secretary consider hosting a reception for those 150 parliamentarians, either at the Foreign Office or maybe even in No. 10 Downing Street?
I am always grateful to my hon. Friend, who is full of knowledge on these matters. I will certainly consider the possibility of holding just such a reception, and I can think of all sorts of suitable venues.
I have made repeated representations, as the hon. Lady can imagine, to the Government of Burma, and particularly to Aung San Suu Kyi—I have now spoken to her three times—to urge the return of the refugees. We secured the first UN Security Council statement on Burma in a decade, and I know that is a subject in which you take a particular interest, Mr Speaker. Burma must heed these calls from the international community and take the necessary steps that we have set out.
Three months on from the start of the current crisis, we all continue to be shocked and horrified by the tragic stories of the plight of the Rohingya people fleeing to Bangladesh and by the scale of the crisis. EU member states, as well as the US Congress, are reportedly considering reimposing some sanctions against Myanmar’s leaders. What discussions have Ministers had on that with EU member states, and what will be the Government’s position?
I have indeed raised this already, as the hon. Lady can imagine, with our European friends and partners. At the Foreign Affairs Council on 16 October we got agreement around the table that we will suspend Burmese military visits and review all defence co-operation. We got a further agreement to consider additional measures if the situation does not improve, and we will indeed now be doing so.
My hon. Friend is absolutely right that that is critical. If those 608,000 people are to have any confidence about the prospect of their return, they must have clarity about their citizenship and their treatment when they come back to Burma and Rakhine. That is why the Annan plan makes it absolutely clear that there must be citizenship rights and investment in the development of equal treatment for all of Rakhine’s ethnic groups.
In answer to the hon. Member for Newport East (Jessica Morden), I detailed what we have been doing with our EU friends and partners. We have secured agreement to suspend military visits, and we will review matters with our friends and partners as things develop.
I would have called the hon. Member for Cheadle (Mary Robinson) if she had been standing, but she was not, so I did not, but now she is, so I will.
My hon. Friend is entirely right. The UK is one of the biggest participants, having been either the biggest or second biggest donor to the humanitarian crisis in Bangladesh. We should all congratulate the Government of Bangladesh on the forbearance and energy they have put into coping with this appalling crisis. The UK is contributing £47 million, which has helped to provide for 174,000 people. We have provided safe water and sanitation for more than 138,000, and emergency shelter for 130,000; we have provided aid, counselling and psychological support that will reach more than 10,000 women suffering from trauma and 2,000 survivors of sexual violence; and we have provided medical help for more than 50,000 pregnant women to give birth safely. That is a record of help and support for the crisis of which the whole House can be proud.
There has been potent evidence of the fact that ethnic cleansing and genocide is taking place in Burma, so what actions or steps have our Government, with the United Nations, taken to bring about prosecution in the international courts of the Buddhist monks and the generals for carrying out ethnic cleansing?
I agree very much with the hon. Lady that, unless the refugees are allowed to return, this crisis —this purge—will indeed satisfy the definition of ethnic cleansing. As for genocide, I am afraid we have recently received evidence of a very troubling kind, and we will make sure that such testimony of what has been taking place is collated and used so that the proper judicial authorities can determine whether it answers to the definition of genocide. As she will know, genocide is a strict legal term, and we hesitate to deploy it without a proper judicial decision.
The Burmese military have produced an absurd report claiming that not a single innocent life has been lost and that they have not been involved in any violence against the Rohingya. Does my right hon. Friend agree that no whitewash report will cover up all the mounting evidence of the atrocities carried out against the Rohingya?
I absolutely agree with my hon. Friend that it is vital that the Burmese Government acknowledge the scale of what is happening and the horror with which events are being greeted around the world. For many years, the world has looked to Aung San Suu Kyi as a great moral leader. We still salute her for her struggle for democracy in the face of the generals, but it is vital now that she stands up to condemn what is happening and brings the nation together. I am sorry to say that so far the Burmese Government have failed to do that.
Colombian Peace Process
Significant progress has been made since the signing of Colombia’s historic peace agreement last November—the FARC has disarmed and is now a political party; and a temporary ceasefire has been negotiated with the National Liberation Army—but difficult challenges remain and it is vital that momentum continues, especially as the country prepares for elections next year.
In the light of the current crisis in the implementation of the Colombian peace agreement, including the killings of former FARC combatants and social leaders, the changes to the special jurisdiction for peace and the lack of re-integration opportunities, will the Minister make urgent representations to the Colombian Government about their international obligations to implement the agreement as it was signed?
We fully support the Colombian Government in doing their utmost to implement the agreement as was signed. We are concerned by increasing attacks on human rights defenders, which are interrupting the passage towards a lasting peace, but we are in no doubt that responsibility for the majority of such attacks lies with illegal armed groups.
Does my right hon. Friend agree with the current and former Presidents of Colombia, Juan Manuel Santos and César Gaviria, that the continuing failed global policy of prohibition of drugs and the creation and sustaining of vast criminal enterprises serves to undermine the peace, stability and institutions of Colombia and its neighbours? Will the Government work to move towards an evidence-based policy response?
My hon. Friend is absolutely right to point to the fact that drug smuggling and trading is becoming a main threat to the implementation of the peace agreement. I am reassured that the Colombian Government are investigating the deaths of several individuals who protested against coca eradication in Tumaco on 5 October.
Will the Minister see what he can do to drive concerted European action to bring supportive pressure to bear on President Santos? The President’s legacy could be an implemented peace deal, but at the moment the legislative process to underpin the peace process simply is not there. We must have action in the last six months of his term.
We are actively supporting the Colombian Government. We have provided almost £20 million from the conflict, stability and security fund. I am also proud that UK-led work has led to the UN Security Council resolutions to assist the peace-building process that we all want to see succeed.
Only a political solution will bring the long-term stability that Yemen needs. Yemeni parties themselves must engage constructively with peace opportunities when they come along. The United Kingdom is playing a leading part diplomatically, at the UN and elsewhere, to try to bring other parties together so that we can see the political solution that is needed.
Yemen is in the grip of a humanitarian disaster, with another 50,000 children expected to die before the end of the year because of famine and cholera, yet the UK’s arms sales to Saudi Arabia have been worth 18 times the aid given to Yemen over the past two years. What will the UK Government do to ensure that the blockade is lifted now and to contribute to Yemen’s reconstruction, rather than to its destruction?
The efforts being made with the coalition are not only to give its members assurances about the security they need to ensure that there are no further missile attacks like the one on Riyadh on 4 November, but to seek to relieve the restrictions that are preventing humanitarian access from getting through. No one doubts the scale of the humanitarian crisis that already exists in Yemen and that faces its people if those restrictions are not lifted. The United Kingdom is working with others on both the security for the coalition in the area and the need to relieve the restrictions to make sure that humanitarian access can be given.
My hon. Friend is right. A process is under way, led by the UN special representative, and we are supporting that. It requires both sides to recognise that there is no military answer to what is happening in Yemen. There has to be a political solution. We are working steadfastly through our ambassador in Yemen and through the UN to try to ensure that the parties get together to make sure that there is a political solution. We are doing everything we can because we recognise the urgency of the situation.
The scale of the humanitarian crisis is truly frightening and the Saudi blockade could result in thousands of further deaths. A political solution is vital. Will the Minister tell us whether the Prime Minister has spoken to the Crown Prince of Saudi Arabia? If she has not, can she do so as a matter of urgency to get the blockade lifted?
Ministers, including the Prime Minister, have spoken to the Crown Prince of Saudi Arabia. Repeated representations have been made by other Ministers since 4 November and continue to be made. We recognise the need for security for the coalition, but we also recognise the urgent need to lift the restrictions and make sure that humanitarian access is given.
Does my right hon. Friend agree that the situation in Yemen very much points to the fact that we have a failed Iran policy? We have a capital in Tehran that is taking British hostages, that is developing missiles, that is threatening its neighbours and that is destabilising the region, and our policy is what? There is none.
There is a significant policy in relation to Iran, which a number of different debates and conversations in this House have detailed. Work is going on to explore what opportunities there are for Iran to play a more constructive part in the region, but in relation to human rights sanctions, to criticism about its activities with terrorist groups in the area and to its ability to destabilise the region, the United Kingdom’s position is very clear. However, there is engagement with Iran, which is important both for the UK and for others. The policy of that constructive engagement is very clear.
Yesterday, the Minister of State said that the Saudi blockade of Yemen did not breach international humanitarian law because it is intended to stop the smuggling of missiles to the Houthis. How does he respond then to the leaked briefing by the United Nations Panel of Experts on Yemen, which says that there is no evidence of such smuggling and that this is just another attempt by the Saudi coalition to justify obstructing the delivery of commodities that are essentially civilian in nature?
I do not agree with the conclusion—[Interruption.] No, I do not agree with that UN assessment. It is perfectly clear that weapons and weapons parts have been smuggled into Yemen, and have been used to fire against parties to the coalition. We are quite sure that that is the case. However, the point is not only to give some security to those who do not want to see such missiles pointed at their airports, but at the same time to ensure that the coalition partners realise that the restrictions being put on entry to ports may not assist them in dealing with all the smuggling they are concerned about, but will certainly damage the humanitarian situation and make it worse. That is what we are trying to persuade the coalition partners to relieve.
We defend human rights in a variety of ways. That involves not only funding human rights advocates and training judges and the police, but ourselves as Ministers raising directly with heads of states and our opposite numbers human rights issues across the world and across the continents.
Last February, the Foreign Secretary said that he wished to be a champion of President Sisi of Egypt. With mass arrests, torture, disappearances and deaths in custody now the norm in Egypt, can the Minister tell the House what exactly the Government find to champion in Sisi’s record on human rights?
We continue to raise very strongly with the Egyptian Government our concerns about these issues. The hon. Gentleman is absolutely right to raise them. There are some very troubling issues in Egypt. We continue to study them and we raise them with our US and EU partners all the way—[Interruption.] As the Foreign Secretary says, he raised it directly with President Sisi at his last meeting.
Similar to the horrors that we witnessed last year in eastern Aleppo in Syria, today we are confronted with the brutal siege of eastern Ghouta by the Assad regime. What action will the Government take to protect civilians and to ensure compliance by reasonable actors with the human rights obligations, most particularly the Assad regime and its regime backers?
We absolutely agree that the Assad regime is horrifying in the way in which it treats civilians. It has an extraordinary record of brutality and murder. We will document very closely the abuses that it has committed. We continue to call on it through every single channel not to conduct these operations, and we will make sure that people are held accountable for their crimes.
Christian communities are under attack in a number of developing countries to which we give very large amounts of international aid, including Pakistan. What steps will the Government take to ensure that that aid is given on condition that these communities are protected?
That is absolutely correct. Indeed, Christian communities and many other minority religious groups are increasingly under threat across the world. That is true of Christian communities in the middle east. It is true of Christian communities in Africa. It is true of Christian communities in Pakistan. We will support civil society organisations. In Pakistan, we support the rights of Christian communities, Shi’a minority communities and other groups. We continue to advocate for them with the Government of Pakistan, and we will continue that civil society support.
We have looked seriously into this issue. We have pressed the issue with the Qatari Government, and we will continue to press exactly this issue with the Government of Qatar.
We have a renewed dialogue with the Government of Sudan. As the hon. Gentleman will be aware, the US Government have now lifted sanctions in relation to Sudan. I met the Sudanese delegation in October as part of the renewed dialogue. We had a human rights workshop at the centre of that dialogue, and we continue to press with the special rapporteur on human rights for progress on exactly these issues.
In August, the American Government withheld $290 million of military and economic aid from Egypt because of its recent track record on human rights. I thought I would never say this, but will the Minister ask the Secretary of State to learn some lessons from Donald Trump and to force President Sisi to clean up his act?
We thank the shadow Minister very much for raising that issue. We agree very strongly that there are very disturbing signs in Egypt. That is why my right hon. Friend the Foreign Secretary raised this issue directly with President Sisi, and we will continue to do so on every occasion.
Maintaining the integrity of the Antarctic treaty is fundamental to protecting Antarctica. The UK’s leading role within the Antarctic treaty system has allowed us to push consistently for increased levels of protection for the continent’s vulnerable environment, and we are committed to continuing to do so.
“Blue Planet II”, among other things, reminds us all of the very delicate and extremely vulnerable biodiversity of our deep oceans—particularly those around the Antarctic continent. Yet, when the nations of the world proposed there should be a marine protected area for the Weddell sea—an area seven times the size of Germany—that was resisted particularly by two nations, namely Russia and China. In the Secretary of State’s forthcoming visit to Russia, will he take the opportunity of pressing the Russians to support the rest of the international community in pressing for a marine protected area for the Weddell sea?
I am very happy to put that on our agenda, but may I also reassure my hon. Friend that the UK is a co-proponent of the proposal to establish a marine protected area in the Weddell sea, and that is being developed by the European Union and its member states? British scientists are taking a leading role in preparing a final MPA proposal, which is to be presented to the Commission for the Conservation of Antarctic Marine Living Resources in October next year.
The hon. Member for North Wiltshire (James Gray) mentioned “Blue Planet II”, and 12 million people watched it on Sunday. We want to know what the Government are going to do to protect the beautiful environment around South Georgia and the South Sandwich Islands. Will the Government now commit to establishing a marine sanctuary around this British overseas territory?
This issue has been championed very much by my right hon. Friend the Member for Newbury (Richard Benyon). Indeed, it is not just in the Antarctic that the UK is championing marine protection. The UK is on track to deliver our Blue Belt manifesto commitment around the overseas territories. We will have protected 4 million sq km of ocean by 2020, and the South Georgia and the South Sandwich Islands were designated in 2012 as a sustainable use MPA covering 1 million sq km. The first formal review of that will take place next year.
The Foreign Secretary met Spanish Foreign Minister Dastis, and I met Europe Minister Jorge Toledo, at the UK-Spain Tertulias conference in Bath on 3 November. The Prime Minister spoke to Spanish Prime Minister Rajoy by phone on 27 October. The Foreign Office is actively engaged with the Spanish Government through our embassy in Madrid and the Spanish ambassador in London, including when he and I met on 11 October.
I think the whole House is united in our concern about events in Catalonia and how this has been handled over recent weeks. Scotland is of course no stranger to independence referendums. Does the Minister share my belief that the success of our referendum in 2014 demonstrates the importance of having such referendums conducted according to the rule of law and subject to the rules that were agreed by both sides beforehand?
I absolutely agree with my hon. Friend. Catalonia is a matter for Spain in the same way as Scotland was for the United Kingdom. The Scottish referendum was a legal referendum following the signature of the Edinburgh agreement between the Scottish Government and the Government of the UK. The referendum in Catalonia was not legal in that way. We fully support Spain in upholding the rule of law and its constitution.
The right hon. Gentleman makes the point about the Scottish referendum being a legal referendum, but Catalonia has had no legal routes from which to have a referendum. Will he put pressure on his Spanish colleagues to look at Scotland’s referendum as a shining example of how democracy can be respected, as well as the rights of the people of Catalonia?
This is entirely a matter for Spain. It has rules under its own constitution that should be upheld and not challenged in an illegal way, as they have been in Catalonia.
Whatever the rights and wrongs of the action that the People’s party took, does my right hon. Friend agree that the heavy-handed action of the Spanish police exacerbated matters? Does he take heart from news breaking in Spain at the moment that it now intends to give fiscal powers to Catalonia similar to those of the Basque country—something that has not been offered before?
Of course no one wants to see violent scenes such as we saw on our televisions, but if there is to be progress on this and it is what the Spanish Government legally and properly decide to do, of course we will support any such legal democratic action.
Leaving the EU: Foreign and Security Policy
The Government published a paper on 12 September which sets out our vision for a future partnership with the EU on foreign policy, defence and development. I am pleased to say that in my discussions with our EU friends since then, that paper has had a very good reception.
The so-called future partnership paper on foreign and security policy published by the Brexit Department in September had plenty of positive things to say about the value of EU-UK co-operation. Will the Secretary of State therefore update the House on what progress, beyond the mighty fine warm words, has been made on the Brexit negotiations?
If, by that, the hon. Gentleman means progress on the foreign policy and defence policy side, I must remind the House that that is not at the absolute centre of the negotiations, but it is widely understood that the UK, contributing as we do 20% of European defence spending and 25% of European aid spending, will be there in a supportive way whatever the outcome of the negotiations. As the Prime Minister has rightly said, our commitment to the defence and the security of Europe is—I think this is the word that was particularly warmly received by our friends and partners—unconditional, as it always has been and always will be.
Foreign and security policy will remain as vital as ever when we leave the EU. Can my right hon. Friend confirm categorically that we will remain as committed as ever to European security after we leave the EU?
We certainly shall. My hon. Friend asks an important question. The answer cannot be repeated too often, and it needs to be heard particularly in the countries that emerged from beneath the shadow of Soviet domination. They need to hear that we are there for the long term, as we are there on the borders of Estonia. We are committed, above all, to NATO, which is the guarantor of peace and stability in our continent. The UK, let the House never forget, is the second biggest contributor to the NATO alliance.
The hon. Gentleman will recall that, earlier this year, in May, we held the Somalia conference, working with our European friends and partners particularly to make sure that the Somali central Government in Mogadishu collaborate more closely with the federal member states on a new national security architecture for Somalia, so that the fight against al-Shabaab can be prosecuted more successfully. That is the work we are doing with our European friends and partners, and that will continue under any circumstances.
Is not that the point: we do not have to be inside the European Union to be concerned about and committed to European security, and we will remain as committed as ever even if we are outside the EU framework?
My hon. Friend is exactly right. I have compared the support that we will offer in the future to a flying buttress, as it were, outside the main body of the cathedral but supportive of that cathedral. That is how the UK will continue to be, on an unconditional basis.
Last week, Sir Simon McDonald told the Select Committee on Foreign Affairs that more civil servants—unelected bureaucrats, in the parlance of the Conservatives—would be sent to Brussels. Can the Foreign Secretary tell us how many of those officials will focus on foreign and security policy co-operation with the EU, how much it will cost and whether it will be part of the £40 billion settlement with the EU?
I can tell the House—I am sure that all Members will be pleased to hear this—that we will be beefing up our representation in Europe. We will have 50 more posts, at least, in other EU capitals, and they will strengthen and intensify some bilateral relationships that, in my view, have been allowed slightly to ossify under the EU arrangements that we have pursued over the last 45 years.
More Brussels bureaucrats with Brexit. Sir Simon McDonald did say that there was an initial Treasury pot—I will try to help the Foreign Secretary here—of £250 million. How much of that has the Foreign Secretary secured to go towards security policy co-operation—or has the Chancellor told him to “go whistle”?
I do not think that the hon. Gentleman was listening to my last answer, because I said that the increased diplomatic representation that we would make in the rest of Europe would be dispersed not just in Brussels, but around the rest of the capitals. Of course, each and every one of those individuals will be working on our common foreign and security objectives, and making the case, which I made in an earlier answer, that our support for European defence and security is unconditional.
It is now nearly 50 long years since the start of the troubles in Northern Ireland, and none of us who lived through that era ever wants to go back to it again. In February 2016, the Foreign Secretary gave his guarantee to BBC Northern Ireland that a vote for Brexit would leave arrangements on the Irish border, and I quote, “absolutely unchanged”. There were no caveats, and no “I hope that this will happen”; there was just an unequivocal commitment that nothing would change. Can the Foreign Secretary give us the same promises today?
I think, if I may say so, that the right hon. Lady is right to ask that question. I was recently in Dublin talking to all the political groups there, and there is no question but that the issue of the border is very live in Irish politics. I repeated exactly the pledge to which she refers: there can be no return to a hard border. There can be no hard border. That would be unthinkable, and it would be economic and political madness. I think everybody, on both sides of this House, understands the social, political and spiritual ramifications of allowing any such thing to happen. That is why it is so important that we get on to the second phase of the negotiations, that we get sufficient progress at the European Council in December and that we are able to debate these issues properly.
I thank the Foreign Secretary for that answer. No one will have missed the fact that, like on so many of his initial promises over Brexit, he has turned this from an unequivocal guarantee to an aspiration dependent on a successful deal—[Interruption.] I did listen to the right hon. Gentleman.
It seems to me that, like his jogging partner from The Sun, the right hon. Gentleman is now saying that it is up to the Irish to find a solution, but why should that be? It was his promise that border arrangements would not change, so it is up to him to make sure that that works. That is why I want to challenge the Foreign Secretary today. In September, he laid down four personal red lines for the Brexit negotiations. None of them related to the Irish land border, which is a crucial issue to 1.8 million of our own citizens and 4.8 million of our friends south of the border, so may I—
Order. We are immensely—indescribably —grateful to the shadow Foreign Secretary, but I think she is approaching her peroration, with a question mark at the end of it. I am happy to indulge Front Benchers to a degree, but I want to accommodate Back Benchers. I am determined to get to the bottom of the list today, and I shall do so.
Let me urge the Foreign Secretary to announce a fifth red line today by promising unequivocally what he promised last year—that Irish border arrangements will not change—and to say that if those arrangements do change, he will refuse to stay in the Government.
If I may say so, I think the right hon. Lady prepared her supplementary question before she heard my first answer. There can be no return to a hard border. We do not want a hard border north-south, or indeed east-west.
We are seriously concerned by the continued demolition of Palestinian property by the Israeli authorities, which causes unnecessary suffering and is harmful to peace. We regularly raise this issue, and our embassy in Tel Aviv most recently raised our concerns with Israel in a joint démarche with European partners on 2 November.
I thank the Minister for his answer. As we know, we have recently seen a very clear indication from Israel’s Defence Minister about the intention to demolish the communities of Khan al-Ahmar and Susiya, and the military has issued a demarcation order signalling the intention to evacuate communities in the Jordan valley and E1 areas. Does the Minister agree that Israel must be held to account if those things actually take place?
This is the subject of a continued conversation with the Israeli authorities in which we make it clear, as do others, that the threat to settlements is unacceptable. I have visited both places—Khan al-Ahmar some years ago, and Susiya quite recently—as have representatives from the embassy. We wait to see further developments. There is a lot of talk about further demolitions, but then the legal process holds them back. However, Israel can be in no doubt of our concerns about the demolition of Palestinian properties and the damage that that does for the prospects of a peaceful settlement.
The reality is that 100,000 hectares of Palestinian land have been taken for settlements and 50,000 homes have been demolished. Will the Minister at least call on the Israeli Government to lift the demolition order on the Bedouin village of Susiya, to which he referred? Will he put in place measures, such as guidance to UK businesses that they stop trading with illegal settlements, in a bid to break this cycle?
We will keep our existing trade relationships, which allow customers to make their own decisions about where the goods they buy come from. We are making our position on settlements extremely clear, and we will continue to do so.
I thank the Minister for his answers. When Prime Minister Netanyahu was in London recently, what discussions did my right hon. Friend have with him about face-to-face peace talks between the state of Israel and the Palestinians so that we can create a state of Palestine alongside a secure state of Israel?
When the Prime Minister met Prime Minister Netanyahu on 2 November, she reiterated our continued opposition to settlement activity, and also encouraged him to make the most of the likely opportunities that will come up when the Americans bring forward the proposals they have been discussing privately for some months about the prospects of peace. This chance should not be missed by either side.
This year marks 40 years since Egyptian President Sadat’s historic visit to Israel, which led to a lasting peace between Israel and Egypt. Peace has only lasted when Israel’s neighbours have reciprocated its goodwill gestures, with land swaps a key aspect of that. Does my right hon. Friend agree that there can be peace between Israel and Palestinians only following the resumption of direct peace talks in which issues including land borders can be resolved?
The short answer is yes, but I do not think we should miss the 40th anniversary of the extraordinary activity that took place between Israel and Egypt. What we would give now for a similar gesture of peace on all sides to bring this long-standing conflict to an end.
Does the Minister believe, with particular reference to Israel and the west bank, that holding children in detention constitutes a breach of the United Nations convention on the rights of the child?
We express repeated concerns to Israel about the treatment of children and ask it to adhere to UN principles on that. We continue to raise this matter of long-standing concern.
Foreign Online Activity
We have seen no evidence of any country successfully interfering with our robust electoral system, but we know, of course, that Russia seeks to undermine our institutions by using disinformation to further its ends, including through social media. The best guarantee against that is a free, open press and an accessible media.
How does the Foreign Secretary square that with the comments made by the Prime Minister herself only last week at Mansion House? She said that she believes that there has been Russian interference in our political system. Will he do something about that? Does he not think it is a disgrace that not one member of the security services has been interviewed by any Committee of this House about what the real facts are?
When the Prime Minister spoke of “meddling in elections”, as she did in her Mansion House speech, she was referring to examples outside the UK. The hon. Gentleman will recall that she made that clear at Prime Minister’s Question Time on 15 November.
Freedom of Expression
This question follows on almost directly from our comments and criticisms about what is going on in Russia. Freedom of the press is absolutely indispensable for prosperous societies around the world. That was why on 2 November we announced FCO funding of £1 million over the next financial year to support projects that promote freedom of expression and the work of journalists.
I am very proud of the Government’s activity on freedom of expression around the world and warmly welcome the £1 million funding for areas of the world where press freedoms are curtailed. Will the Foreign Secretary confirm whether the £1 million funding is a one-off, or will it be reviewed and perhaps increased if it is deemed successful?
We will review the success of the funding, but it is there to show the Government’s commitment, as part of our global Britain values agenda, to a free press around the world. I mean that very sincerely. Across the world, more journalists are being killed and locked up, and that is not only a political disaster but an economic disaster. The most prosperous and successful countries are those that also have a free press that is able to expose corruption and enable democracy, which allow the economy to flourish.
We have made it absolutely clear to our Chinese partners that the joint declaration is absolutely valid and operative, and that one country, two systems, enshrining all the values the hon. Gentleman rightly draws attention to, remains in force.
Our early lunchtime exchanges would be incomplete if we did not have the participation of the right hon. Member for New Forest West (Sir Desmond Swayne).
Ministers regularly visit Bangladesh, with which we have a very special relationship. I have had the pleasure of visiting, as have my right hon. Friends the Ministers for the Middle East, and for Asia and the Pacific, who visited Bangladesh on 27 and 28 September.
Is the Minister satisfied with the level of support we are providing for the Rohingya?
More support can always be provided for the Rohingya. The situation is horrifying: nearly 600,000 refugees—Burmese citizens, we should emphasise —driven out of their homes by horrific actions provoked largely by the Burmese military. We are providing £47 million of assistance, which makes the UK the largest bilateral donor, and we have just sent experts on preventing sexual violence in conflict to the camps in Bangladesh, but there is always more to be done.
Last week I visited Dublin, where I discussed how to strengthen the bonds between our countries and address Ireland’s unique circumstances, including the land border, as the UK leaves the EU. I am closely following the situation in Zimbabwe, where our primary goal is for the country’s people to be able to decide their own future in free and fair elections next year. I am deeply concerned by the suffering in Yemen. Britain supports Saudi Arabia’s right to protect its security, while urging that emergency supplies get through to the millions who depend on them.
The United Nations special rapporteur on freedom of expression and human rights reports that the Iranian regime is undertaking a campaign of harassment, persecution and intimidation against staff of the BBC Persian service and their families that is aimed at preventing them from doing their jobs. What representations has the Foreign Secretary made to the Iranians about this?
We have made repeated representations to the Iranians about human rights concerns, but I will certainly be happy to take up the issues the hon. Lady raises in person during the course of my projected visit to Iran in the next few weeks.
My hon. Friend asks a very thoughtful question about what is happening in Germany, but I do not, as it happens, think that the German Government will be in any way incapacitated when it comes to the negotiations in December or, going forward, doing a great free trade deal with the UK over the next 18 months.
Last Wednesday, the Prime Minister was asked about the recent elections in Somaliland, but in response she talked about the entirely different country of Somalia. Will the Foreign Secretary take the Prime Minister to one side and ask her to leave the foreign policy gaffes to him? On a more serious note, will he tell us how the Foreign Office is working to help to preserve peace and democracy in Somaliland in the wake of last week’s post-election violence?
Somaliland is in fact a rare beacon of peace and stability in the region, and we congratulate it—in the end—on the conduct of the elections. We also congratulate the extraordinary steps taken by the election candidates to commit to ending female genital mutilation and to putting in place the legislative framework to achieve that.
We continue to urge Israel to implement the recommendations in the “Children in Military Custody” report. I raised the issue with the Israeli authorities during my visit to Israel in August 2017, and Ministers and the British ambassador to Tel Aviv have spoken and written to the Israeli Justice Minister and the Israeli Attorney General. The UK continues to have strong concerns about reports of the ill treatment of Palestinian minors in Israeli military detention.
As the House will know, the United Kingdom has been in the lead in championing measures to mitigate climate change. We can be very proud of the impact that we have had in cutting our own carbon dioxide emissions and, of course, working with our friends and partners around the world to implement the Paris accord, which is the way forward.
My right hon. Friend raises the absolutely fascinating conundrum of how effectively the Government could marshal the extraordinary panoply of UK soft power. I never normally disagree with him in any way, but I tend to think that our soft power is so huge that it would not necessarily benefit from any political attempt to co-ordinate it. What I can say is that I believe the work of the British Council is often unsung, although it is hugely important. I think that all Members want to support that organisation and to see it properly funded.
This is a genuinely troubling case. There is an additional horror in being a relative of a victim of homicide when the event has taken place abroad because of the unfamiliar context, all the complexities of dealing with it, and the problems with the justice system. We will continue to monitor that case very closely. We now have a specialised unit in the Foreign Office to deal with cases of exactly this sort.
I totally agree with my hon. Friend. Antonio Ledezma is but the latest opposition figure to flee from Venezuela. On 10 October, I raised our concerns with the Venezuelan Foreign Minister, who denied that Venezuela was in crisis. That is immoral, it is wrong, and it is why this Government consistently argued for targeted EU sanctions, which were adopted on 14 November.
The situation in Kashmir is still tragic, as it has been for many decades. The position of the British Government remains that this is an issue to be resolved between the Governments of India and Pakistan, but we continue to champion issues relating to human rights abuse with both Governments whenever they occur, and we will continue to monitor the situation extremely carefully.
This has been a difficult recent chapter between the Kurdish region and Iraq. So far, because of good sense on both sides and a desire to reconcile, there has been no physical conflict at the border area. It is essential that both the Government in Baghdad and those in Erbil find a way through the present constitutional difficulties to make sure that the long-standing concerns of the Kurdish people are recognised within a united and strengthened Iraq. The United Kingdom will do all in its power to make sure we put our words to that effect.
Who shall we have? I was going to call Mr Burden, but he is not standing, so I can’t and I won’t. I call Jo Swinson.
At the last Foreign Office questions, the Foreign Secretary told me that the UK could not pinpoint any direct Russian cyber-attacks on this country. Today, he tells us the Prime Minister’s comments last week about Russia’s sustained campaign of cyber-espionage and disruption refer only to other countries. Why does he think the UK is uniquely immune to Russian interference, or is he just complacent about the threat?
I should be clear with the hon. Lady that, because of the sensitivity of the intelligence involved, it is impossible for us to pinpoint these attacks in public. When the Prime Minister referred to “meddling in elections”, she was referring to meddling in other countries.
If the hon. Member for Newark (Robert Jenrick) will confine himself to a short sentence, I will call him, but if he won’t, I won’t.
There is no hiding from the fact that the loss of a British judge on the International Court of Justice is a major failure for British diplomacy. What lessons will the Foreign Office learn to ensure that this does not happen again?
I cannot quite agree with the construction my hon. Friend places on events, but I repeat my congratulations to the Indian judge. As the House will know, a long-standing objective of UK foreign policy has been to support India in the United Nations.
The military orders issued against the Bedouin villages of Jabal al-Baba, Ain al-Hilweh and Umm el-Jimal will involve the forcible transfer of over 400 people, which the director of the Israeli human rights organisation B’Tselem has described as a war crime. If Israel believes such actions can continue without consequence, what reason will it have to think it should do anything other than carry on with such actions with impunity?
The hon. Gentleman’s words and concerns are echoed by the United Kingdom. As has repeatedly been made clear, we believe that concerns about demolitions, threatened demolitions and movements make a peace settlement more difficult, and we are repeatedly in contact with Israel about that. We still hope that current events in the region give Israel an opportunity to recognise that it can have a secure viable future with a two-state solution. We will do everything in our power to press it to take that opportunity, as the Palestinians should as well.
What representations has my right hon. Friend made to the Government of Pakistan about human rights abuses and the desire for freedom in Balochistan? [Interruption.]
Badakhshan is of course a region of Afghanistan, so interference in Badakhshan from Pakistan would be a serious issue. My hon. Friend may perhaps be referring to Balochistan, where we continue to raise reports of human rights abuses with the Government of Pakistan.
My constituent Laura Plummer has been imprisoned in Hurghada, Egypt, for several weeks, having taken Tramadol with her to help to manage her boyfriend’s back pain. She might be tried on Christmas day. We make no criticism of the Egyptian authorities, but will the Foreign Secretary continue to make representations to them to make it known that this was a very naive young woman who has made a very bad mistake, but has not in her mind committed a crime?
I recognise the work that the hon. Gentleman is doing on behalf of his constituent and I thank him. We are providing every consular assistance to Laura Plummer and, as he may know, I have intervened in the matter with the Egyptian Foreign Minister, Sameh Shoukry.
Does the Foreign Secretary regret the Russian veto of the UN vote on an investigation into the use of chemical weapons in Syria?
I do. It is shameful, and another aspect of Russia’s continual abetting of some of the worst excesses of the Assad regime. That is certainly one of the things that I will take up when I go to Russia at the end of next month.
The right hon. Member for Cynon Valley (Ann Clwyd) should not worry; I have preserved her contribution for the belated adoration of the House.
Thank you, Mr Speaker. What assessment has the Foreign Office made of the current political situation in Cambodia?
As the House will be aware, the opposition leader in Cambodia has recently been arrested and imprisoned. Cambodia continues to be a one-party state. There is a closing space for civil society, and there are increasingly brutal crackdowns on the opposition. This is an area of extreme concern for the international community and Cambodia remains an outlier in Asia.
The humanitarian crisis for the Rohingya represents a critical test for the US Administration. Although Secretary Tillerson’s condemnation of abuses is welcome, action is needed to bring about a comprehensive end to the crisis. Will the Secretary of State update the House on what discussions he has had with our US allies to urge them to take an international lead in addressing this crisis?
My hon. Friend is absolutely right that any pressure on Burma and the Government in Naypyidaw would be greatly assisted by more pressure from the United States. Rex Tillerson is now actively engaging. Burma is not an area where the US has traditionally been in the lead, but the UK, working with the US, is building pressure internationally. I have already mentioned to the House some of the things that we have done at the UN and elsewhere to exert pressure on the Burmese Government.
Will the Minister tell us what discussions he has had with the Government of India about their human rights record in the state of the Punjab, critically in relation to my constituent, Jagtar Singh Johal, who has been in custody since 4 November without charge? There is now a possibility—or accusation—of torture, and the Prime Minister indicated the Government’s personal interest on BBC radio yesterday. Will the Minister advise me and the House how the Secretary of State is working with the office of the Prime Minister to assist my constituent and his family in Dunbarton?
We have taken this issue very seriously. The deputy high commissioner managed to gain access, and we have now had a meeting with the hon. Gentleman’s constituent. We take any allegation of torture seriously, as, indeed, do the Indian Government. It is completely unconstitutional and offensive to the British Government. We will work very closely to investigate the matter and will, of course, take extreme action if a British citizen is being tortured.
Automatic Travel Compensation
Motion for leave to bring in a Bill (Standing Order No. 23)
I beg to move,
That leave be given to bring in a Bill to make provision for passengers to receive automatic compensation from travel operators in certain circumstances; to require train operators to ring-fence certain funds received from Network Rail for service disruption and planned possessions for the development of ticketing technology to facilitate the payment of automatic compensation for passengers; and for connected purposes.
In short, my Bill would ensure that passengers on trains, flights and other domestic transport systems automatically received in their bank account the delay repay compensation due to them without first having to work out their rights or apply for it. The mechanism for claiming refunds for delays and cancellations is complex and cumbersome. As we found with Ryanair, the rules are not always explained correctly—or explained at all—to passengers. This comes at a time when innovation in technology should be lessening the need for passenger administration and red tape. Let me use rail and flights as examples, although this Bill would also apply to trams, ferries and other paid modes of transport.
Let me first turn to rail, in which I declare my current interest as a 12-year veteran of the daily commute from East Sussex to London. Nearly 67 million rail journeys last year were either cancelled or were significantly late. These delays can lead to lost output, financial hardship and stress. Passengers expect adequate compensation for these difficulties. To implement this fully would incentivise the train operators and Network Rail to do more to prevent these issues from occurring in the first place. This would, in turn, increase our nation’s productivity.
A number of steps have been taken in the past year, including the strengthening of the Consumer Rights Act 2015 and the introduction of Delay Repay 15 for Southern and new franchises, but only a third of rail passengers who are owed compensation make a claim. Network Rail currently makes payments to train operators for all the delays that it has caused through track and infrastructure failures. However, if only a third of the passengers who experience the delay claim for it, the remainder must be retained by the train operators. My Bill would require the train operators to ring-fence this excess so that it could be used only to advance technology that would allow every passenger to touch on, and off, their train. Having pre-registered account details, the passenger would automatically receive compensation in their bank account on the day they were inconvenienced.
None of this should be particularly complicated. Six of the 27 train operators have some form of automatic compensation for certain passengers. Among the six, I understand that Virgin Trains West Coast offers it to passengers who book directly, and that Govia Thameslink, via its three operators, and c2c offer automatic compensation to season ticket holders. Providing compensation as some sort of perk to certain classes of ticket-holders is missing the point, and distorts competition in the ticket-buying market. Every passenger is entitled to compensation. If the technology exists, it must be applied to all. Where compensation is not going to the passenger, the taxpayer-funded compensation coming from Network Rail must be used by all train operators to get us to a place where compensation is automatically delivered to every passenger so entitled.
Let me now turn to flights. The situation is arguably worse with airlines, as the recent debacle at Ryanair demonstrated, with 2,100 flights being cancelled and 315,000 passengers of Ryanair being left completely out of pocket. However, the company’s website failed to mention the word “compensation”, stating only that it would comply with EU regulation 261/2004. Unless passengers happen to be experts in EU regulations, they will not realise that this rule-set provides compensation and assistance to passengers in the event of denied boarding, cancellation, delays and downgrading when flying. The Civil Aviation Authority had to threaten enforcement proceedings before Ryanair informed its customers of their compensation rights.
This is not new ground for the CAA. In the last six years, it has successfully taken action against a number of airlines, including Ryanair, for a range of issues including non-payment of compensation and providing limited information to passengers. All of this can be avoided. It must be possible to put the onus on the airline to calculate compensation and credit it automatically. For security reasons, every airline must know which flight a passenger is booked on, and know whether that flight has been delayed or cancelled. They also know a passenger’s account details, or can find them via the flight booking agency.
I put this contention to the chief executive of British Airways when he appeared before the Transport Committee last month, and asked him why automatic compensation could not be brought into his industry. His response was to state that
“we will pass that cost on to the consumer, like we always do. We do not operate as a charity.”
That defensive response was revealing. For there to be a cost to pass on suggests that many passengers are not claiming for delays or cancellation because they do not know their rights or find it too cumbersome to claim. We simply do not know the position, unlike in the rail industry. From what the chief executive of British Airways said, it seems that we are unlikely to find out without a change in approach or legislation. When I asked him what proportion of passengers claimed and were paid compensation, he remarked:
“I am not prepared to disclose that. That is commercially sensitive”.
Despite my asking him repeatedly why an answer would give his rivals the upper hand, no additional information was forthcoming.
The previous week, the Transport Committee had heard from the Secretary of State for Transport—who, I should add, does an excellent job, and I hope that the adoption of this Bill by the Government will further his ascent to the skies. I asked the Secretary of State for his views on automatic compensation. He took the view:
“This is not a one-size-fits-all industry. It is a big step for Government to intervene to try to tell businesses how to operate. If there is an absolutely compelling reason to do so, Government act sometimes”.
That, to me, summarises the situation, and it provides the justification for the Bill.
The airline industry has to adopt a one-size-fits-all approach from rules driven by UK Border Force, the Civil Aviation Authority, NATS, the European Union and other agencies and regulators. I believe that the airline industry can take this additional step, and I believe that train operators and those running our ferries, trams, buses and other modes of transport could do likewise. The compelling reason for Parliament, and the Government, to do so is that millions of passengers not only are being inconvenienced by delays, but are not being compensated. It is time for those responsible for the passenger to give something back without further work for the passenger.
I thank the 50 right hon. and hon. Members—many of them are here this afternoon—who have pledged their support for this proposal. It follows the murmur of approval across the House when I asked the Prime Minister to support this change during Prime Minister’s questions. There are many things that the arithmetic of this place will not allow us to deliver. This is one change where the consumer will benefit from our working together, cross-party in Parliament, to cause the industry to change its approach.
Question put and agreed to.
That Huw Merriman, Tom Brake, Maria Caulfield, Douglas Chapman, Sir Jeffrey M. Donaldson, Lilian Greenwood, Peter Kyle, Ben Lake, Caroline Lucas, Tim Loughton, Iain Stewart and Daniel Zeichner present the Bill.
Huw Merriman accordingly presented the Bill.
Bill read the First time; to be read a Second time on Friday 16 March 2018, and to be printed (Bill 129).
On a point of order, Mr Speaker. I am sorry about this, but I have had so many people come up to me and ask, “Are you all right, Mr Bryant?” or “Were you abducted by the Russians?”, that I thought I should explain why I was not present for the first question in Foreign and Commonwealth Office Question Time: it was my own incompetence—nothing more than that.
Well, that is very gracious, extremely welcome and almost certainly unprecedented—unprecedented for the hon. Gentleman to be incompetent, and indeed unprecedented for him to profess his own incompetence. Nevertheless, we are absolutely delighted to know that he is in fine fettle—physically, mentally and doubtless spiritually.
European Union (Withdrawal) Bill
[3rd Allocated Day]
Further considered in Committee.
[Mrs Eleanor Laing in the Chair]
New Clause 16
Charter of Fundamental Rights – Government Report
“(1) Within one month of Royal Assent of this Act, HM Government shall lay a report before both Houses of Parliament reviewing the implications of removing the Charter of Fundamental Rights from domestic law after exit day as set out in section 5(4) of this Act.
(2) The report under subsection (1) shall set out the policy of Her Majesty’s Government specifically in relation to the fundamental rights of—
(a) dignity, the right to life, to freedom from torture, slavery, the death penalty, eugenic practices and human cloning,
(b) freedoms, the right to liberty, personal integrity, privacy, protection of personal data, marriage, thought, religion, expression, assembly, education, work, property and asylum,
(c) equality, the right to equality before the law, prohibition of all discrimination including on basis of disability, age and sexual orientation, cultural, religious and linguistic diversity, the rights of children and the elderly,
(d) solidarity, the right to fair working conditions, protection against unjustified dismissal, and access to health care, social and housing assistance,
(e) citizens’ rights, the rights of citizens such as the right to vote in elections and to move freely, the right to good administration, to access documents and to petition Parliament, and
(f) justice, the right to an effective remedy, a fair trial, to the presumption of innocence, the principle of legality, non-retrospectivity and double jeopardy.”—(Mr Leslie.)
This new clause would require Ministers to produce a report reviewing in full the implications of removing from UK law the Charter of Fundamental Rights – and the rights for UK citizens which it has help to guarantee.
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following:
New clause 78—Consequences of leaving the European Union: equality—
“(1) This section comes into force when the power under section 14 to appoint exit day for the purposes of this Act is first exercised.
(2) The purpose of this section is to ensure that the withdrawal of the United Kingdom from the European Union does not diminish protection for equality in the law of the United Kingdom.
(3) All individuals are equal before the law and have the right to the equal protection and benefit of the law.
(4) All individuals have a right not to be discriminated against by any public authority on any grounds including sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.
(5) The following provisions of the Human Rights Act 1998 apply in relation to the rights conferred by subsections (3) and (4) as they apply in relation to Convention rights within the meaning of that Act—
(a) section 3 (interpretation of legislation);
(b) section 4 (declaration of incompatibility);
(c) section 5 (right of Crown to intervene);
(d) section 6 (acts of public authorities);
(e) section 7 (proceedings);
(f) section 8 (judicial remedies);
(g) section 9 (judicial acts);
(h) section 10 (power to take remedial action);
(i) section 11 (safeguard for existing human rights); and
(j) section 19 (statements of compatibility).
(6) A court or tribunal must have regard to any relevant decisions of the European Court of Human Rights in considering—
(a) the application of this section generally, and
(b) in particular, the meaning of discrimination for the purposes of this section.”
This new clause would ensure that the rights of equality presently enjoyed in accordance with EU law are enshrined in free-standing domestic law after the UK leaves the EU.
New clause 79—Provisions relating to the EU or the EEA in respect of EU-derived domestic legislation—
“(1) Notwithstanding the provisions of section 5(1), HM Government shall make arrangements to report to both Houses of Parliament whenever circumstances arising in section 2(2)(d) would otherwise have amended provisions or definitions in UK law had the UK remained a member of the EU or EEA beyond exit day.
(2) Notwithstanding the provisions of section 5(1) and having reported to both Houses of Parliament, HM Government is bound to consider whether it should incorporate amended provisions or definitions into UK law, in order to ensure that the rights of workers and employees in the UK are no less favourable than they would have been had the UK remained a member of the EU or EEA beyond exit day.
(3) Such circumstances arising in section 2(2)(d) include but are not limited to—
(a) any future EU Directives relating to family-friendly employment rights; including but not limited to rights for pregnant workers and employees, and those returning from maternity leave,
(b) any future EU Directives relating to gender equality,
(c) the proposed Directive of the European Parliament and of the Council on work-life balance for parents and carers.
(4) Reports presented under subsection (1) must include—
(i) an assessment of how such amendments to UK law would have impacted sex equality in the UK had the UK remained a member of the EU or EEA beyond exit day and
(ii) an assessment of how a failure to implement amended provisions or definitions in UK law will impact the ability of families to combine work and care in the UK and gender equality in the UK.”
This new clause would ensure that Parliament is informed of changes in EU and EEA provisions that might have amended UK laws around family-friendly employment rights and gender equality and their potential impact, as well as committing the Government to considering their implementation. This is to ensure that rights of workers and employees with caring responsibilities, and women’s rights, are no less favourable than they would have been had the UK remained a member of the EU or EEA beyond exit day.
Amendment 297, in clause 5, page 3, line 11, leave out “or rule of law”.
This amendment would remove the reference to a rule of law passed or made before exit day.
Amendment 285, page 3, line 12, after “exit day” insert—
“as appointed for the purposes of this section (see subsection (5A)”.
This paving Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.
Amendment 298, page 3, line 15, leave out “or rule of law”.
This amendment would remove the reference to a rule of law passed or made before exit day.
Amendment 299, page 3, line 17, leave out “or rule of law”.
This amendment would remove the reference to a rule of law passed or made before exit day.
Amendment 8, page 3, line 20, leave out subsections (4) and (5).
To allow the Charter of Fundamental rights to continue to apply domestically in the interpretation and application of retained EU law.
Amendment 46, page 3, line 20, leave out subsection (4).
This amendment would remove the exclusion of the Charter of Fundamental Rights from retained EU law.
Amendment 151, page 3, line 26, at end insert—
“(5A) Within three months of the commencement of this section, the Secretary of State must lay before Parliament regulations to create a fundamental right to the protection of personal data.
(5B) A statutory instrument containing regulations under subsection (5A) may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”
Clause 5(4) of the Bill excludes the Charter of Fundamental Rights from the ‘incorporation’ powers in the Bill. This amendment would require the Secretary of State to replicate Article 8 of the Charter (the Right to Protection of Personal Data) in UK domestic law within three months of the commencement of Clause 5.
Amendment 286, page 3, line 26, at end insert—
“(5A) The exit day appointed (in accordance with section 14 and paragraph 13 of Schedule 7) for the purposes of this section must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”
This Amendment is intended to allow for transitional arrangements within the existing structure of rules and regulations.
Clause 5 stand part.
Amendment 10, page 15, line 5, in schedule 1, leave out paragraphs 1 to 3.
To allow challenges to be brought to retained EU law on the grounds that it is in breach of general principles of EU law.
Amendment 101, page 15, line 17, leave out paragraph 2 and insert—
2 (1) Any general principle of EU law will remain part of domestic law on or after exit day if—
(a) it was recognised as a general principle of EU law by the European Court in a case decided before exit day (whether or not as an essential part of the decision in the case);
(b) it was recognised as a general principle of EU law in the EU Treaties immediately before exit day;
(c) it was recognised as a general principle of EU law by any direct EU legislation (as defined in section 3(2) of this Act) operative immediately before exit day; or
(d) it was recognised as a general principle of EU law by an EU directive that was in force immediately before exit day.
(2) Without prejudice to the generality of sub-paragraph (1), the principles set out in Article 191 of the Treaty on the Functioning of the European Union shall be considered to be general principles for the purposes of that sub-paragraph.”
This amendment clarifies that all the existing principles of EU law will be retained within domestic law whether they originate in the case law of the European Court, the EU treaties, direct EU legislation or EU directives. It also makes clear that the key environmental law principles in Article 191 of the Treaty are retained.
Amendment 336, page 15, line 17, leave out paragraphs 2 and 3 and insert—
2A (1) Any general principle of EU law will remain part of domestic law on or after exit day if—
(a) it was recognised as a general principle of EU law by the European Court in a case decided before exit day (whether or not as an essential part of the decision in the case);
(b) it was recognised as a general principle of EU law in the EU Treaties immediately before exit day;
(c) it was recognised as a general principle of EU law by any direct EU legislation (as defined in section 3(2) of this Act) operative immediately before exit day; or
(d) it was recognised as a general principle of EU law by an EU directive that was in force immediately before exit day.
2B Without prejudice to the generality of paragraph 2A, the principles set out in Article 191 of the Treaty on the Functioning of the European Union shall be considered to be general principles for the purposes of that paragraph.
2C For the purposes of paragraphs 1A and 1B the exit day appointed must be the same day as is appointed for section 5(1) of this Act and must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”
This amendment would retain the existing principles of EU law within domestic law whether they originate in the case law of the European Court, the EU treaties, direct EU legislation or EU directives. The freeze date would be at the end of any transitional arrangements.
Amendment 105, page 15, line 21, leave out paragraph 3.
This amendment leave out paragraph 3, thus retaining the right of action in domestic law in relation to general principles of EU law.
Amendment 62, page 15, line 28, leave out paragraph 4.
This amendment would remove the proposal to end rights in UK domestic law after exit day in relation to damages in accordance with the rule in Francovich.
Amendment 139, page 15, line 29, at end insert—
“except in relation to anything occurring before that day”.
This amendment, together with Amendments 140 and 141, would restore the right to obtain damages after exit day in respect of governmental failures before exit day to comply with European Union obligations.
Amendment 302, page 15, line 29, at end insert—
“except in relation to anything occurring before that day.
(2) “Anything occurring before that day” in sub-paragraph (1) shall be taken to mean any action commenced before or after exit day in relation to any act before exit day.”
This amendment would enable actions to be brought under the Francovich rule either before or after exit day if they related to an act before exit day.
Amendment 335, page 15, line 29, at end insert—
“, except in cases whereby the breach of Community law took place on or before exit day.
4A For the purposes of paragraph 4 the exit day appointed must not be before the end of any transitional period agreed under Article 50 of the Treaty on the Functioning of the European Union.”
This amendment ensures that the right to obtain damages if the Government fails to uphold its obligations continues as long as the UK remains under the existing structure of rules and regulation.
Amendment 126, page 15, line 32, after “Rights” insert “or”.
This amendment is consequential on Amendment 62.
Amendment 127, page 15, line 33, leave out
“or the rule in Francovich”.
This amendment is consequential on Amendment 62.
Schedule 1 stand part.
The measures in this group have a number of things in common, and they relate largely to the rights and freedoms that many of our citizens enjoy, without debate or discussion—they are sometimes taken for granted—but that could well be threatened if we do not get this legislative process right.
Of course, the Bill was supposed to be merely a “copy and paste” piece of legislation. We were told that there were no fundamental changes in Government policy and that it was all very straightforward. The Government said, “We are leaving the European Union and becoming a freestanding United Kingdom, so we will simply cut and paste all the EU regulations and laws as they stand into UK law.” However, you will notice, Mrs Laing, particularly in schedule 1, that a number of things are not to be transposed. The Government have specifically chosen not to bring across the charter of fundamental rights.
When I was sitting in the hon. Gentleman’s place, Labour Ministers told us that the charter would have no more influence in the United Kingdom than a copy of “The Beano”—those were the words used—because it would not apply here. Does he not look forward to a time when what Labour Ministers say will bear a greater approximation to truth?
It turns out that the charter does have value, and it certainly does have effect within the UK. I will shortly give some practical examples to show how we cannot simply airbrush this part of our current legislative framework. Many citizens, companies and organisations recognise the value that the charter brings.
Is not an example of the use of the charter of fundamental rights the one given by our right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) when he referred to the case that the EU brought against the Government, in which the current Secretary of State for Exiting the European Union, as part of his argument, prayed in aid the charter. If the Secretary of State thinks that it has use, should not that same use be available to everybody else?
Indeed. My right hon. Friend has stolen the punchline that I was building up to, because that is the one example that I thought would surely clinch the argument. Of all the people who really should value the charter of fundamental rights, surely it is the Secretary of State.
Given that the charter has been part of British law for some years now, the case for repealing it must be based on some harm that it has done. I have never heard anyone describe any harm that the charter is supposed to have done to any public interest in this country, so presumably the hon. Gentleman, like me, awaits some examples to justify the proposed change.
Absolutely. We might hear a different argument from Ministers, but traditionally the Government’s argument has been, “Don’t worry about the charter of fundamental rights; it doesn’t have any effect, it isn’t necessary and we can do without it because it is already there in British law.” It is rather like what the right hon. Member for New Forest West (Sir Desmond Swayne) said in his intervention. Of course, if that is the case, why are the Government deliberately excising it from UK law, and why would they resist new clause 16? The new clause does not even require the charter to be retained—I happen to think that it should be retained—but simply states that Her Majesty’s Government should lay before Parliament within one month of Royal Assent a review of the implications of removing it.
Does my hon. Friend agree that one advantage of the new clause is that we could explore properly the impact of losing the access that the charter gives to UN conventions, for example on the rights of persons with disabilities and on the rights of the child, which currently are not fully incorporated into UK law? We will therefore lose the way in which they are currently accessible through the charter.
Indeed. We need a far more detailed analysis from Ministers of the consequences of deleting the charter of fundamental rights, which are potentially myriad and far ranging. I pay tribute to my hon. Friend for her tireless campaigning on children’s rights. She has tabled several amendments in relation to the UN convention on the rights of the child, and she will know that many non-governmental organisations that campaign for children’s rights, the Children’s Society in particular, have several anxieties about the deletion of the charter of fundamental rights and the lack of clarity that would exist around protecting children, who are sometimes in vulnerable circumstances.
When children in the world are still subject to slave labour or trafficking, or are working as child soldiers, does my hon. Friend agree that the message being sent that the UK would simply do away with rights that we campaigned for, which led to the charter of fundamental rights, is an abhorrence? We need Ministers to come to the Dispatch Box and say that they have changed their mind.
People will have many legitimate anxieties. We cannot simply erase a provision that currently has legal effect and provides legal protections without a statement from Ministers about the effect that that could have in law.
What a choice. I will give way to the hon. Member for Stone (Sir William Cash).
One of the most fundamental questions is the notion of disapplying Acts of Parliament and the supremacy that the European Court of Justice asserts over our parliamentary Acts, which the amendments would effectively transfer to the Supreme Court. As for child protection, I was in part responsible for the Protection of Children Act 1978 and I presented the International Development (Gender Equality) Act 2014, which are intrinsic Westminster Acts. We do not need the charter to do such things; we can do them ourselves.
In no way would I wish to diminish the hon. Gentleman’s contribution to child protection and ensuring that legislation is as good as it possibly can be, but we currently have that extra level of protection that the charter of fundamental rights provides. New clause 16 simply asks for an analysis from Ministers of what would happen to child protection and to many other rights if we delete the charter from our current set of legal protections.
Does my hon. Friend agree that this is about not just the application of the charter of fundamental rights in British law, but the message that we send to the rest of the world? That goes to the heart of the problem with the so-called British Bill of Rights. There are no British rights; there are universal human rights. That is the message that this Government and our continent should send to the rest of the world and to places where people do not enjoy those human rights, which should be inalienable.
My hon. Friend makes a good point. If the Bill contained a provision to copy and paste many of the charter’s general rights into UK law to preserve the current arrangements, the Government would have a reasonable case to make, but there is no alternative provision. The legislation simply deletes the charter of fundamental rights.
I have two points. First, when the charter of fundamental rights was introduced, it was said that it simply restated existing rights that were elsewhere in European Union law. Secondly, the argument that if rights are not given to us by the EU, we in Britain could not somehow manage to create them ourselves is utter nonsense. We are signed up to the European convention on human rights, we have the Equality Act 2010, and we are a signatory to many UN treaties. The notion that if we somehow do not adopt new clause 16, we somehow do not have any human rights is offensive nonsense.
It might well be the case that Parliament could salvage many of the protections over time and put them on our statute, but the Bill seeks to delete the charter of fundamental rights from the point that the legislation is enacted. In other words, it would take away rights that we hope may eventually be replaced, but there are none of the guarantees that we currently enjoy by virtue of our membership of the charter.
As an old lawyer who enjoyed jurisprudence, I know that our laws and rights come from many different sources. I am an old common lawyer, so I actually do not like stuff being written down too much; I like things to develop over time. I would really need persuading about new clause 16, because it just asks for a report, which seems awfully wet.
I was trying my best to offer a hand of friendship across the Chamber and to say, “Let’s meet halfway and find a way of forging a consensus.” If the right hon. Lady wishes, there are other amendments today that ask for the charter of fundamental rights to be kept. I will certainly be voting for those, but she obviously knows that I would like to find a way, in the spirit of compromise, of reaching a consensus. I agree that a report is only a small step in that direction—hence the drafting of new clause 16—but I am massively impressed by her strength of commitment to the protection of rights in our country.
One of the differences between the charter of fundamental rights and the European convention on human rights lies in article 8 of the charter, which relates to the protection of personal data. Is it not a particular irony that the Secretary of State for Exiting the European Union relied on precisely that provision to sue the British Government?
It is probably time to elaborate on that example, because the Secretary of State—for it is he—sued the then Home Secretary, who hon. Members will know is now Prime Minister, to challenge the Data Retention and Investigatory Powers Act 2014 as being inconsistent with EU law. The Secretary of State himself used the argument in court that the charter of fundamental rights needed to be prayed in aid in that case. By the way, he was successful at that point in time.
As a Government lawyer at the time, I was honoured to present that case on behalf of the Government. My real worry about bringing the charter of fundamental rights into English law is that it is too complicated and does not add sufficient rights. Everybody in the House is in favour of the rights in the European convention on human rights that have been incorporated into English law. We are very keen on those and want to protect human rights, but we do not feel that the charter adds sufficient rights to take us much further, and we found that in an enormous number of arguments during that court case.
I have no reason to question the hon. Lady’s capabilities in court, and I am in no way saying that she was a loser in that particular case, but the charter is not complicated. The rights are simple and clear. For example, “Dignity” covers the right to life and to freedom from torture, slavery, the death penalty, eugenic practices and human cloning. “Freedoms” covers liberty, personal integrity, privacy, protection of personal data, marriage, thought, religion, expression, assembly, education, work, property and asylum. Other freedoms relating to “Equality” include the prohibition of all discrimination, including on the basis of disability, age and sexual orientation, and cultural, religious and linguistic diversity. “Solidarity” includes the right to fair working conditions, and protection against unjustified dismissal. Other rights include “Citizen’s Rights” and matters relating to “Justice”. Those are simple, important rights.
I will give way to my hon. Friend the Member for York Central (Rachael Maskell)
I agree with the right hon. Member for Broxtowe (Anna Soubry) that we need more than a report; the rights should be enshrined. On article 25 and the rights of older people, does my hon. Friend agree that having limited protections for older people at a time when so many older people need, but cannot get, things such as social care means that we need to enshrine those rights?
My hon. Friend is correct. While we have powers on the statute and while rights accrue from case law and court conclusions, the charter of fundamental rights fills many of the gaps, particularly in certain circumstances.
I will give way to my right hon. Friend in a moment, because he has a great amendment relating to data, but I want to give an example about the protection of public health. The tobacco manufacturers sought to challenge the Government’s introduction of plain packaging for cigarettes—of course the tobacco manufacturers hated the idea and wanted to stop it—and the Government, in defence of that legislation, prayed in aid of their case the charter of fundamental rights and its protections for public health. The courts therefore upheld the UK’s plain packaging arrangements and legislation on the basis of the protections of public health rights laid out in the charter. That is a very specific example of how the charter has benefited the rights and protections of our citizens in this country.
I thank my hon. Friend for his kind reference to my amendment 151. Going back to the case brought by the now Secretary of State for Exiting the European Union, does my hon. Friend agree that, if the Secretary of State had not been able to rely on article 8, the likelihood is that he would not have won his case and that the hon. Member for Banbury (Victoria Prentis) would have won for the Government? Does that not give the lie to the suggestion that the charter has no impact?
My right hon. Friend is absolutely right. If the hon. Member for Banbury (Victoria Prentis) had won her case, would she be here today? Perhaps she would be higher on the judicial ladder.
The hon. Member for Banbury (Victoria Prentis) suggested that the charter of fundamental rights contains rights that are too complicated to be incorporated into English law. Will the hon. Member for Nottingham East (Mr Leslie) reassure her that those rights have been incorporated into Scots law, which is a separate legal system, and into all the legal systems of the other member states of the European Union? In fact, it is not too complicated to incorporate the rights into English law.
The hon. and learned Lady makes the point very well, but perhaps the hon. Member for Banbury would like to respond.
My point is not that we do not approve of the rights, nor that we thought it was not possible to make the case without the charter, but that the charter has been part of English law since the Lisbon treaty. As good, responsible lawyers, whether acting for the Government or for anybody else, of course we use whatever tools are available to us, which in recent times have included the charter.
My point is that we do not need the provisions of the charter. It is true that it can be argued the charter can do one or two more tiny things, such as widening the class, making what we can get back greater and possibly widening the possibilities for claimants, but my case is that it is possible to do what we need to do to protect people’s human rights within the law as we have it in this country.
I hear the hon. Lady’s case that somehow the charter is not necessary, which is very much the case that Ministers have made in the past, but she has conceded that there are differences that the charter can apply. She characterises those differences as very small, but what she perceives as small or minuscule rights are not necessarily small or minuscule rights to our constituents, to members of the public or to the most vulnerable in society, who may depend on the very rights provided by the charter in crucial circumstances.
Does the hon. Gentleman find it odd that we are transposing all EU law into our own law while taking away the thing that underpins all EU law? We are taking away the fundamentals and foundations of the body of EU law. Is that not an odd way of going about things?
I agree. I find it odd that Ministers are saying that, somehow, the charter does not matter but are then saying that we must delete the charter in the Bill. They would almost die in a ditch to defend clause 5(4), which simply says:
“The Charter of Fundamental Rights is not part of domestic law on or after exit day.”
If the charter is so benign and so irrelevant, why not have the report? It may be tedious to some, but the report is necessary to explain whether those rights do or do not offer protections. If the charter is so ineffectual, and if this is supposed to be a copy-and-paste exercise to transpose EU law, I do not see the argument for deleting the charter.
Has the hon. Gentleman paid attention to protocol 30? Article 1(2) states:
“In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.”
The whole point of the charter of fundamental rights, subject to the protocol, is that it does not apply in our national law.
I am not quite sure that is the interpretation of the courts, which have referenced the charter of fundamental rights in a number of cases. If the hon. Gentleman listens to the case that my right hon. Friend the Member for East Ham (Stephen Timms) will make in respect of amendment 151, on the free flow of data across borders and on the protections we have, he will hear how the very backbone of our data protection laws, which go alongside the general data protection regulations, is represented in the charter of fundamental rights. It is not me making the case; it is techUK, the trade bodies and the organisations that campaign and fight to protect data and privacy rights. Many organisations and non-governmental organisations will be bombarding the inboxes of Conservative Members as we speak about those protections.
Will the hon. Gentleman give way?
I want to make a little more progress, if I may, because I need to reference a number of other amendments.
I hope this is not the case, but it seems to me that the Prime Minister, worried that hard-line Eurosceptics and Brexiteers on her Benches are champing and nipping at her heels, had to throw them a bone. There was a need to give them something, and therefore the charter of fundamental rights was the scalp she felt she had to throw in the direction of some, but not all, Conservative Members. I hope that is not the case, because significant protections on data, on children’s rights and on public health—even the protections that the Secretary of State for Exiting the European Union himself has used—are rights and privileges that we should jealously guard. It is our job in this Parliament to stand up and point out when the Executive are potentially trying to erode many of those rights. I hope we can keep the charter or, at the very least, have a report on its effect.
Amendment 62 also addresses changes in rights. This is not a pure copy-and-paste exercise, and the amendment seeks to preserve something known as the Francovich rule in our legal system. Essentially, it is a fundamental principle of any democracy that Governments should not be above the law. In EU law, the principle is made real by the Francovich rule, which was established by case law that provides citizens with tools to recover damages when their Government fall short of legal obligations. In this case, again, the Government are trying to do away with those protections, and I tabled the amendment—other hon. Members have tabled similar amendments—to probe the Government and to find out what will be the effect of removing the Francovich protection.
The recent prosecutions of the Government under clean air laws, for example, might not have been possible if the Francovich duty were not enshrined in law. The result of the Bill, as drafted, is that, the day before Brexit, people will have the right to claim damages from the Government for the harm they suffer, but there is a danger they will not have that right the day after Brexit.
My hon. Friend makes the point well. We can all imagine circumstances in which the Government could be in part responsible for failures to comply with various legal obligations—as she says, it might well include failure to comply with air quality directives—and those who suffer harm as a consequence of those Government failures may no longer have the right of redress. Those rights exist not only in environmental legislation but in, for instance, equal opportunities legislation. I can foresee circumstances in which a same-sex couple seek retroactively to claim their right to pension arrangements that might not have existed in the past so that they can accrue their pension rights, but they would not have redress to do so under the proposed arrangements.
The other big one is competition law, which relies very much on the right to challenge the Government, particularly on procurement arrangements. Companies that say they did not get a contract for such and such a reason may well feel that it was partly because they were unfairly treated by Government. Under the Francovich arrangements we have protections so that contracts can be let fairly, be it for house building, transport infrastructure or anything else we can name. A number of protections need safeguarding there.
Perhaps the biggest one that has not been addressed by Ministers and where Francovich may still be required is the protection of the rights of EU nationals after Brexit. A number of EU nationals will continue to reside in the UK after Brexit, but what will happen if their residency rights or definitions change, if their children are affected by changes of arrangements with the Government, or if rights to claim various tax reliefs or other things change in an unfair way for them, as EU nationals? There should be some level of redress against malfeasance by Government in that respect, so at the very least we need to hear from Ministers a better justification for the deletion of this Francovich protection.
My hon. Friend is making some excellent points. His amendment on Francovich echoes my own, although mine is slightly different on time limitation. Does he agree it is unthinkable that a Government who throughout this Bill have said, “All rights and protections would be guaranteed,” are now seeking to remove the ability to sue the state for imperfect administration, mostly of directives, at a time when they are about to incorporate hundreds if not thousands of pieces of EU law into our UK law? They are saying, “If anything goes wrong with any of that, you’ve got no right to sue us in the future.”
My hon. Friend is correct about that and she has tabled a very good amendment on this issue. Ministers need to do better and explain why they would seek to wrench out of the protections for our citizens this potential right-to-redress arrangement, particularly as it may well affect malfeasances and the need for redress that takes place before exit day. This is not just saying that this rule will not apply to situations that occur after exit day; its drafting would prevent that right to redress, even if the claim itself relates to an occasion prior to exit day. All hon. Members, regardless of political party, should therefore think of their constituents, the cases we pick up and the surgery discussions we have with people who ask what they can do. The Government are a large and powerful organisation—many Conservative Members often make that point about the size and power of the state—and individuals need rights in order to protect themselves in some of those circumstances. This is something that really should transcend the normal party political issues.
As the hon. Gentleman will know, the threshold for claiming damages under Francovich is that the breach needs to be “sufficiently serious”, which is a principle stemming from EU jurisprudence and case law from the European Court of Justice. Is his position that claims will be interpreted under UK law even in the event of a lack of provision of “sufficiently serious” in UK statute, or is it that UK courts would be applying ECJ jurisprudence in that event?
Would it not be great if we were having a proper debate about retaining Francovich protections, albeit possibly making an amendment? The hon. Lady may well have a case for increasing or decreasing the level of the damage thresholds in place, but that is not what we are debating; we are debating simply the deletion of this Francovich protection—that right to redress—from our laws and protections. I would be happy to discuss with her where that level should be set, as there is a debate to be had about that, but we are talking about the principle, yes or no, and whether this should be retained within this legislation.
My hon. Friend rightly suspects that the Government will say that removing the charter from the UK will not affect the substantive rights that individuals already benefit from in this country. Does he agree that the problem is that the Government do not go on to say what those substantive rights are? If we simply leave it to the common law, a future Parliament—it may not be this one—could determine that it is right to erode those rights. That is why it is important we stick with the charter.
We need to make sure that if we are transposing legislation, it is a true copy and paste, but that is not what has been proposed. I am not in favour necessarily of cutting off our relationship with the single market or the customs union. There are a lot of debates on the Brexit choices we have before us, but here we are dealing with a set of separate discussions about the rights that our citizens—our constituents—could have in a post-Brexit scenario, and we need a better justification in order to be convinced than that we should just throw these overboard at this stage.
I hope this will be a more helpful intervention. The hon. Gentleman is making a good point. The point about Francovich is that we will not be able to have a claim arising from a directive that we have accepted into substantive British law because we will have left the European Union, and that is simply not fair. People would have had a claim but we will have left, so someone who sought to make that claim afterwards will not be able to do so. It is right that we will not be subjected to any new directives, so people could not raise them, but it is bad to take away a right that people would have had as we had accepted the directive into substantive law. That is the point here.
Yes, the right hon. Lady makes a good argument about how we are transposing certain bits of European legislation into UK law but not necessarily the protections to go alongside them. That is the point we need an explanation on. Why not bring those with us?
I have been listening carefully to the hon. Gentleman’s argument on transposing the charter of fundamental rights into British law. Is it his case that it should be transposed as a cut and paste or that it should be adapted? Article 39 talks about the right to stand for the European Parliament, article 44 talks about the right to petition the European Parliament and article 45 talks about freedom of movement, all of which would presumably no longer be relevant after we leave the EU.
I have been in Parliament since 1997, on and off, and I find that amendments can often be rebutted for a number of reasons but when people say there is a technical deficiency that tends to be the last refuge of the Minister. There may well be arguments that say that we need to cut and paste the charter of fundamental rights or the Francovich provisions, but to do so having regard to changes in the language to take account of new circumstances. Everybody can recognise the need for consequential or supplemental amendments to the legislation sometimes, but let us not kid ourselves: we are talking about some far bigger principles here. I hope the hon. Gentleman would not diminish the importance of the charter of fundamental rights and those myriad legal rights and protections we have that are so essential for the specific and general reasons I have given in this debate.
I will give way one more time but I want to make sure that other Members have a right to speak today as well.
I am in violent agreement with the right hon. Member for Broxtowe (Anna Soubry) on the issue of Francovich, and I will be speaking to those points in more detail when I come to talk to my amendment. Does my hon. Friend share my concerns that certain rights in the charter such as environmental rights, consumer rights and the rights of the elderly in particular, which are not highly developed in UK case law or in any other sort of legislation, are gently being thrown out with the bathwater in this removal of the charter of fundamental rights?
That is an exceptionally important point. Our legal system is one of the finest in the world. It is a dynamic legal system and is not simply reliant on statute; it can relate to cases as they evolve. The charter of fundamental rights, which could equally be a charter within the UK law, according to this Bill, if it were transposed, could help to maintain that dynamism and the protection of rights to fill the gaps when those unforeseen circumstances arise. We do not know what issues our constituents will bring to us from one week to the next, but we may well have a constituent who has found that their rights have been deprived unfairly and who needs redress to protect them from the Government or others. In our surgeries and discussions, what will we say to our constituents in such circumstances? What will we say when they say, “But you had the opportunity to transpose and retain the protections under the charter of fundamental rights”? Will we say “Oh, well, it was a very busy day. I didn’t really notice what was going on in the Chamber. There were lots of complex things going on to do with Brexit”?
This really matters. I am delighted and proud that many Members from all parties in this House are voicing their concerns and are not prepared to see these rights just swept away on a ministerial say-so.
It is a great pleasure to follow the hon. Member for Nottingham East (Mr Leslie). If I may say so, I do not take the view of my right hon. Friend the Member for Broxtowe (Anna Soubry) in her description of new clause 16. It seems to me that in tabling it for consideration by the Committee the hon. Gentleman has accurately sought to stimulate an extremely important debate on the consequences of getting rid of the charter.
I sometimes feel that there is perhaps a failure of some Members to look at what has been happening in our society and country over a 40-year period. On the whole, western democracies have tended in that time to develop the idea of rights. I know that for some Members that appears to be anathema—it makes them choke over the cornflakes—but it is a development that I have always welcomed and that, it seems to me, has delivered substantial benefits for all members of our society, particularly the most vulnerable.
In this country we have had a long debate about how we reconcile rights with the doctrine of parliamentary sovereignty. Indeed, in 1997 the Labour Government sought to craft—extremely ingeniously, I thought, which is why I was very supportive of it at the time—the legislation that would become the Human Rights Act in an effort to achieve that reconciliation. I think most people in this House would argue that that Act has worked very well by preserving parliamentary sovereignty for primary legislation, enabling secondary legislation to be struck down if incompatible and with the mechanism of a declaration of incompatibility when required.
The truth is that because of our membership of the European Union there are some things that many of us would regard as rights but which fall outside the scope of the Human Rights Act and the European convention, and those things have developed over the same period I mentioned as a result of our European Union membership. I appreciate that that leads to double choking over the cornflakes, because not only have those rights come from what some people might regard as a tainted source—although I am blowed if I can think why: it is just another international treaty—but on top of that is the fact that once in place the charter has no regard for our parliamentary sovereignty. It has the capacity to trump our domestic laws if there is an incompatibility between our domestically enacted laws and the principles of, or anything that has come from, the charter. That is part of the supremacy of EU law to which we have all been subject.
All that should not make us ignore the benefits that the charter of fundamental rights has conferred. Whatever we may think as we talk about parliamentary sovereignty, I venture the suggestion that if one goes out into the street and asks people whether they think that equality law, which is largely EU-derived, has been of value to this country, most people would give a resounding note of approval. I am sure they would do the same with respect to the recent Benkharbouche case in relation to the disapplication of the State Immunity Act 1978 for the purposes of enabling an employment case to be brought against an embassy that had mistreated one of its employees. Of course, as has been cited, the Secretary of State for Exiting the European Union has availed himself of the provisions of the charter and the rights that the EU has conferred in relation to questions of data privacy and the way data is handled.
Is the right hon. and learned Gentleman also aware of the simple rights that many of us will have used on behalf of a parent, such as the right to wheelchair accessibility at our airports? There are also rights that came up in the course of the youth justice review I did for the Government, to do with making courts child-friendly so that, for example, they do not intimidate a young woman having to relay a terrible case of sexual assault. Such rights did not exist in British law but now exist as a result of the charter. For that reason, we ought to give due respect to our European friends for giving us the charter.
I place great respect on the fact that, for all the faults I can sometimes identify, when the European Union was established its founding fathers wished it to be based on principles not only of the rule of law, but of a vision of human society of which I have no difficulty approving.
I will just make a little progress.
I do not have any problem with that vision at all. It worries me that, in the course of this debate on Brexit and our departure from the European Union, in this massive upheaval of venom about the EU that I have experienced personally in the past week, which seems to have no relation to reality at all and troubles me very much, we seem to be at risk of losing sight of these aspects of real progress within our society as a result of our EU membership. They are overlooked.
I have listened to my right hon. and learned Friend with great care and interest. Will he explain why the matters to which he and the right hon. Member for Tottenham (Mr Lammy) have just referred could not be enacted? In fact, they often are enacted; I referred to the Protection of Children Act 1978, the International Development (Gender Equality) Act 2014 and so forth. Does he not understand that it is terribly important to remember that implicit in the charter—as a distinguished lawyer, he knows this—is the power of the European Court to disapply Supreme Court enactments? The Factortame case was a good example of that in respect of the Merchant Shipping Act 1988.
I thought Factortame would come along at some point in this debate. My hon. Friend is of course right about that. I know that he has spent most of his career in this House agonising over the issue of the loss or diminution of parliamentary sovereignty. That is not a matter to be neglected, and if he will wait just a moment I shall come to that point.
As I said, by raising the points he has through tabling new clause 16, the hon. Member for Nottingham East has done the right thing, because we need to focus on what is going to happen after we have left the EU. Of course my hon. Friend the Member for Stone (Sir William Cash) is correct: the laws that we have enacted, as at the date of exit, as a consequence of our EU membership and the requirement for us to adhere to the charter, will remain in place, but it is interesting that they will thereafter be wholly unprotected. For example, they will not even enjoy the special protection that we crafted in the Human Rights Act for other areas deemed to be of importance.
One solution may be that, in due course, we ought to think carefully about whether there are other categories of rights additional to the European convention on human rights—heaven knows we have been here before—that ought to enjoy the sort of protection that the Human Rights Act affords other rights. That might well be the way forward. I agree with my hon. Friend that it is slightly strange that, in leaving the EU for national sovereignty reasons, we should then say that we will continue to entrench certain categories of rights protected in the charter and give them a status even higher than, for example, prohibiting torture under the ECHR. That might strike people as rather odd. On that basis, I am forced to conclude that, if we are leaving the EU, as we intend to do, the sort of entrenchment that has previously existed is not sustainable. We will have to come back to this House to consider how we move forward, but, in saying that, I think that this is a very big issue indeed.
It worries me that, when we leave in March 2019, there will be a hiatus. There will be a gap where areas of law that matter to people are not protected in any way at all. It is no surprise, therefore, that non-governmental organisations have been bombarding MPs with their anxiety. I think that that anxiety is misplaced, because I cannot believe that any Member on the Treasury Front Bench intends to diminish existing rights. However, we are in danger from two things. One is sclerosis—that the rights development will cease. Secondly, because those rights do not enjoy any form of special status—many, not necessarily all, should certainly do so—there will be occasions when we nibble away at them and then discover that they have been lost. For that reason, it is a really urgent issue for consideration by this House, preferably before or shortly after we leave.
My right hon. and learned Friend and former pupil master is making a speech with his characteristic intellectual honesty. Nothing passes him by. In that spirit, does he agree that the charter is not really the solution to incorporating the rights that so many of us want to see incorporated, such as the new views of sexuality and children’s rights? Possibly the way forward is not to vote for this new clause, but to continue to put pressure on those on the Treasury Bench to ensure that those rights are protected in a modern and suitable way for the current world.
My hon. Friend makes a good point. As has been pointed out, this new clause just asks for a report, which means it is trying to concentrate minds on an issue. In our debate last week, one point that I made on my new clause 55, which is still hanging over the Treasury Bench like the sword of Damocles, is that there may be some ways in which we can provide—even now as we leave, as a temporary measure before we can return to the issue—some greater reassurance on the protection of key rights in the fields of equality. I strongly recommend that my hon and right hon. Friends pay some attention to that, because the issue will not go away. If we do not seek to act on it, the idea of a modern Conservative party starts to fray at the edges, and I do not wish my party to gain a reputation for ignoring these key issues.
Might I use as an example very cash-strapped services, which might not naturally wish to be extending the rights and the costs of services? For example, in the aged care sector, a couple who traditionally had to be split up due to the needs of one or other of them can, under European rights, remain as a couple. We can imagine that, in a time of cash-strapped services, that sort of right might not necessarily fall into the lap of service users.
The hon. Lady makes a valid point, but it is worth bearing in mind that that is covered by the Human Rights Act and the ECHR, so let us not get too worried. We must also face up to the fact that some socio-economic rights that require levels of cost and economic policy decisions are legitimate areas in which Parliament and Government can say that, however ideal they might be, a balance must be struck. That is why I am always careful—this probably marks me out as a Conservative—about the infinite extension of rights, because thereby we dilute their importance. That is very important to bear in mind.
My right hon. and learned Friend raised the issue of the extension of rights. Is not one of the problems with the charter and its interpretation by the courts that, because it is a very general set of rights, it can be extended by courts? Unlike with the ECHR and the Human Rights Act, it is not just about declaring incompatibility, but about striking down Acts of this Parliament too. This does not get the balance right, which he accepts is very important.
That of course was one of the great anxieties when the charter was enacted. Indeed, it is the reason for the UK’s so-called opt-out, but it is not an opt-out because, in so far as the charter reflects general principles of EU law, we are bound by it. One example, which my right hon. Friend will remember, was the case of Chester and McGeoch and prisoner voting rights. There was an attempt to invoke EU law as a tool in order to force the UK Government to bring in prisoner voting, at least in relation to European elections. I think that it is fair to say that it caused much disquiet in government as to the possibility that that might be the outcome of the court case. Indeed, I went to argue the court case as Attorney General on the Government’s behalf in our Supreme Court. Invoking EU law was used as a tool, but it did not lead to that outcome.
Looking back over the history of the charter, I do not think that some of the fears that were expressed—that it would be used for an expansionist purpose by the European Court of Justice in Luxembourg—have been proved to be correct. In any event, we are leaving the jurisdiction of the Court of Justice of the European Union, unless we have to stay in it for transitional purposes. When we are gone it will be our own Supreme Court, in which I have enormous confidence, that will carry out that interpretation. I do not want to labour this point much further. I simply want to say that there is a really important issue for us to debate. It is about what happens to the sorts of rights that have come to us through the charter and through the EU. The matter cannot be ignored. In the short term—the sword of Damocles moment again—the Government must think about it before the Bill has finished going through this House.
I just want to make sure that I understand what my right hon. and learned Friend is suggesting. Are there some items in the charter which are not going to be retained through the retention principles of the Bill, but which should be retained in the form effectively of becoming an amendment to the HRA, so that they are subject to the HRA’s protections?
That could be a solution, but even if we do not have time to move to that and to have the necessary debate—as we highlighted in the question about the statutory instrument powers that the Government are taking to change law—some comfort and reassurance might be provided with the fact that there are some categories of EU-derived law that could do with at least the assurance that they would require primary legislation to change them. That might go some way to providing reassurance to some of the perfectly worthy organisations that have been writing to us that there is no malevolent intent towards this important area in which rights have developed.
The general principles of European law do not cover the principles of environmental law. That was made clear to us in terms from the Dispatch Box last week. The charter does guarantee those environmental rights. Does the right hon. and learned Gentleman agree that environmental principles are one area in which this Bill is deficient and in which our rights will be lost?
I agree that environmental law is an area that could do with the scrutiny that I have just outlined.
I just want to follow what my right hon. and learned Friend was saying a moment ago, because it seemed to be a very useful suggestion. Is he saying that, as part of what he and I sometimes call the triage process, certain items that are classed as rights could be subject to primary legislation in full for amendment, whereas others, which are important but not rights, might be subject to the affirmative procedure and others, which are technical, will be left over for the negative procedure?
Yes, absolutely, and that was what new clause 55 sought to achieve, although it did provide the opportunity of looking at purely technical amendments—those would be really technical, and I do not wish to burden the Committee with complete trivia.
My right hon. and learned Friend is making a typically thoughtful and deeply considered speech. On a point of clarification, would it be right to say that there are, effectively, three different categories in the charter of fundamental rights? There are those rights that, as I indicated earlier, do not make a lot of sense in transposition, such as the right to petition the European Parliament. There are those rights that are already covered by the Human Rights Act, such as the right to life and the right to property. However, there is a third category of rights, such as that in article 41, that are not covered by our own jurisprudence and legal system, and they might usefully be so in due course.
My hon. Friend is absolutely right. He has correctly analysed what the issues are and the categories of rights on which we probably ought to focus.
Some of these rights are going to be incorporated in different statutes. For example, there is going to be an environment Act, which will create a new regulator and, we hope, protect those rights. Is the present proposal not a very broad brush, which is ill fitted to dealing with these rather detailed matters? Can my right and learned hon. Friend give us some reassurance that Supreme Court judges will not be left dealing with more legal uncertainty, rather than less, because they will have to adjudicate between two different rights regimes—one that is directly applicable from our own statute, and the other where they may have to declare an incompatibility with European convention rights? How will that diminish legal uncertainty, which is what Supreme Court judges are looking for?
If I understand my hon. Friend’s question, it goes to the point I made a moment ago, which was that it ought to be possible to consider whether some of these rights should be incorporated in a Bill of Rights that provides equivalent protection to that currently provided in the Human Rights Act. I think it is possible to distinguish between what matters and what does not. I am not suggesting that all environmental law would have to enjoy that protection, but I think it is possible, and an exercise that this House and the Government will have to carry out—the pressure will build for this—to give this issue some consideration. Equally, the House may decide that it is not concerned about some categories of rights and that it just wants to stick to things such as equality, data privacy and children’s rights. We will need to debate that.
But it will create uncertainty.
No, I do not think it will create uncertainty, any more than the Human Rights Act has created uncertainty. I have to say to my hon. Friend that I do not think that that is an issue. However, as I say, I do accept that it will take time to draft and debate these things, and it is not in this current forum that we will be able to achieve that.
On the point my right hon. and learned Friend is making, I think I am in complete agreement with him. It is right for this place to consider, debate and legislate on these issues, because this is the right forum for doing that, rather than by implementing a whole slew of rights, which would then be entirely in the hands of the courts.
Yes, and there we are in agreement. It is inevitable and regrettable that we face this situation, but that is why simply to convert the charter, which, in any case, has lots in it that is unconvertible, and to say that it should maintain entrenched rights, seems to me, in the light of what we are debating in the context of Brexit, to be an impossibility. That is not something that commends itself to me.
Let me now move to a slightly narrower issue. We have to accept that, in the course of what we are doing, we are going through a complex period of transition. Forget about the transitional arrangements we may be negotiating with our EU partners—the truth is that we are creating a whole category of transitional law. By the concept of retained EU law, we are doing some very strange things indeed with our ordinary legal principles.
Clause 5(2) allows EU law to have priority over domestic law in certain circumstances. In fact, it allows for the possibility of UK law enacted prior to exit day being quashed for incompatibility with EU law that is retained on exit day. I simply make the point that, leaving aside our EU membership, which of course will have ceased, this is an utterly unique development in our legal system—it has never happened before. We are about to create a species of domestic or semi-domestic law—I would not quite describe it as feral law—which will have the unique quality of being able to override our own laws. Clause 6(3) will also allow CJEU judgments given before exit day to be binding, but not on our Supreme Court—a matter that my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) and I have been worrying about quite a lot in the course of the passage of this legislation.
So although the CJEU will rightly lose jurisdiction, it and EU law will keep a special status. However, that is intended to be only temporary, although how temporary is speculative, and I of course note clause 5(3), which says that this law can be modified and still retain this special status, as long as the modification, I assume, is not so dramatic or drastic that it is made explicit that it should lose it. That is different from replacement. That, I suspect, is because the Government know very well that this situation may continue for decades to come.
Yet, in the middle of that, the charter is removed. Leaving aside the other issues concerning the charter, which I have touched on, and which I do not want to go back over, that creates an unusual circumstance. EU law was always intended to be purposive, and one of the purposes is to give effect to the fundamental principles under which the EU is supposed to operate. Yet we are removing the benchmark under which this law is supposed to operate, because the charter will no longer be there, although, interestingly—I think this is an acknowledgment by the Government of the problem they have—they have then, in the next clauses, essentially allowed the charter and general principles of EU law to continue to be used for the purposes of interpretation.
It is very unclear how all this, in practice, is going to work out. That is why I tabled my two principal amendments. Amendment 8 would allow the retention of the charter. It provides an easy route to ensuring that this legal framework is retained, but for the reasons we have just been debating, there are serious issues surrounding it, which is why I think it is probably wrong to pursue it.
However, there is then the question in schedule 1 of what we do with general principles of EU law. What they are is totally undefined, but I assume—I have to assume—that if the Government are content to articulate the existence of general principles, they have done enough research to establish to their own satisfaction that general principles do exist—they are the result of court judgments interpreting the law and, indeed, the fundamental principles in the charter, but not the ones that are going to disappear on the day we leave.
Is not the important point about clause 5 that any future Act of this Parliament takes supremacy, so if there is a muddle or a problem, this Parliament can sort it out definitively? I should have thought that that would deal with the interests of all parties concerned.
My right hon. Friend almost makes my case for me. He is absolutely right that, in so far as we want to depart from anything, this House, once we have left the EU, can do what it likes, and as regards anything we enact thereafter, the supremacy of EU law is entirely removed. We can do exactly what we please, except, I am afraid, in so far as we may find ourselves still locked into trying to maintain comity with the EU when the penny drops about the economic consequences of not having it. However, I will refrain from straying too far into that area.
So the question is: is there some merit in keeping the right to bring a challenge using general principles of EU law? I would have thought that there is. I tried to work through in my mind the importance of this. First, we may have retained EU law that is deficient, defective or does not operate properly, or a court might be forced to conclude that it operates in a capricious or even unfair manner, or is disproportionate. At the moment, the only remedy for the court, unless it can bring in the Human Rights Act, will be to apply the law and somebody points out to a Minister that that law is working very badly.
In my right hon and learned Friend’s observations about schedule 1, paragraph 3(2), is he referring to retained general principles of EU law or to new ones post Brexit? If he is talking about the retained ones, I have a great deal of sympathy with his position, whereas importing rights of challenge that rely on later developments of EU law would be quite against the principle of Brexit.
My right hon. Friend is absolutely right and we are completely of one mind on this. I am talking about retained principles—the principles that were seen to exist at the date of exit.
I am delighted, though not surprised, that my right hon. and learned Friend and I are thinking alike on this, as we have thought alike on many of these issues. Does he think, in that case, that his amendment 10 ought to be recast when, as I hope, it appears as a Government amendment on Report, so as not to remove paragraph 3 but to say, instead of “general principles”, “retained general principles”, with similar consequential adjustments?
I am grateful to my right hon. Friend for his intervention. As I have said on many previous occasions, whatever merits I may have as a lawyer, I am not a parliamentary draftsman. On top of that, I gently point out that, in an effort to get my amendments in early, they were, in the usual way, drafted with a wet towel around my head at about 30 minutes past midnight on the night before Second Reading. I am therefore quite sure that they are all capable of substantial improvement. Indeed, in my experience, it is very unusual for an amendment ever to be accepted just like that, apart from when it adds a comma, particularly in Committee.
Yes, of course there are different ways in which this can be approached. Indeed, my hon. and learned Friend the Solicitor General, with whom I have had an opportunity for a bit of a chat—I shall look forward to talking to him further about this—has made it clear that he thinks I have been a bit too draconian in deleting paragraphs 1, 2 and 3. On the other hand, there are some other things in paragraphs 1, 2 and 3 that I find rather concerning. However, I shall confine myself to paragraph 3 for the moment.
On whether the drafting is entirely right, so far, as far as I am aware, the Government have had absolutely no answer to the extremely clear case that my right hon. and learned Friend has made about the proper way to protect these cases in future. The obvious thing is for the Government to accept these amendments today, because they can come back on Report and start correcting and redrafting amendments to which I am sure that he will be wholly receptive. What I would not welcome is some vague assurances from Front Benchers that they will think about it and then might come back with something on Report. The drafting can be corrected later; the points that he is making need to be confirmed today.
My right hon. and learned Friend makes a very good point. He highlights the difficulty faced by all Back Benchers, particularly Government Back Benchers, in presenting amendments—namely, the extent to which they should accept assurances from Front Benchers. That largely depends on how detailed the assurance is—whether it is woolly and vague or has some specificity to it. My judgment on whether I might press amendment 10 to the vote will depend on how specific Front Benchers can be in providing an assurance that they recognise that, even if there may be areas that remain to be debated, there is a core issue that must be addressed about the ability to bring a right of action in domestic law based on a failure to comply with a general principle of EU law when it concerns the operation of retained EU law.
Furthermore, because retained EU law has supremacy over domestic law, it must be possible that there might be instances in which our domestic law would have to be altered. The Government cannot then argue that that is an extraordinary thing to do, because they have themselves drafted this Bill in a way that allows for the possibility of UK domestic law being quashed. That will, I hope, be for a temporary period. Nevertheless, I am unable to understand how, during that temporary period, we can end up with a situation where the Government are perfectly happy to allow for the supremacy of EU law but remove the very principles that moderate it, ensure that it cannot be abused, and, in those areas that were within EU competence, provide a framework under which the Government are undertaking to operate unless or until they repeal the bits of retained EU legislation that they are bringing into our law.
Before my hon. Friend intervenes, let me say this to him. The big argument against EU law is that it was either created by “this foreign body” or it was inflicted on us and we had to enact it in order to comply with our international legal obligations. In those circumstances, it is a bit odd if we start arguing that, in view of where it comes from, the possibility of, for example, knocking it on the head because it does not comply with its own general principles should be entirely abandoned.
I hope that my right hon. and learned Friend will not go down the rabbit hole suggested by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), which is that we should accept this incongruous proposal when in fact it involves a fundamental principle of constitutional supremacy. I am sure that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) understands that. He is identifying a number of questions, and I entirely encourage him to continue to do so. I suggest, however, that it would be very unwise indeed to follow the advice of my right hon. and learned Friend the Member for Rushcliffe as regards the Government accepting these amendments for the time being.
I understand my hon. Friend’s point. However, the purpose of this Bill, as I understand it, is to put together a package that enables a smooth transition from our presence within the European Union to our presence outside of it. That, of necessity, requires adjustments to the purity of his thinking about parliamentary sovereignty, which the Government have been required to acknowledge in the way that they have drafted this Bill. In those circumstances, it does not seem to be pushing the boundaries very much further, nor should it be seen as some treasonable article, for us to consider whether the general principles of EU law ought not to be capable of being invoked when they are probably the very thing that has, over the years, prevented the EU from turning into an even worse tyranny, as my hon. Friend would see it. [Interruption.] Well, I have to say, having listened to him, that that is usually the impression that has come across. He sees it as tyrannical because it is not moderated by the doctrine of our parliamentary sovereignty. I simply make that point; I do not wish to labour it.
Is there not an important change once we have left the European Union in that the European Court of Justice would not accept the jurisdiction of the European Court of Human Rights because it would not accept that a higher court could intervene in any of its rulings? It therefore needed protections within its own system that within our system are provided by the European Court of Human Rights and the application of that in domestic law.
My hon. Friend makes an interesting point. I slightly question the extent to which we have had clear evidence of that, although I know that there has been a reluctance on the part of the European Court of Justice to accept any higher authority, despite the intention of the parties that it should become subordinate, ultimately, to the ECHR. He is right that one reason why the charter came into being was to secure compliance. I think it is rather more of a hypothetical than an actual state of affairs, although such a problem might exist in future. In any event, I do not think we are dealing here just with matters covered by the ECHR, for the very reasons that were discussed earlier in relation to new clause 16, which was tabled by the hon. Member for Nottingham East. I simply say to my right hon. and hon. Friends that the issue has to be addressed.
As I said earlier, I recognise that my amendment is not as good as it might be, and could be improved on. If the Government can give me an assurance that is adequate and goes beyond vagueness, I will be content not to press amendment 10 a vote. The issue is not going to go away, however, and when one is in this sort of dialogue with the Government, one does not want to be soft-soaped off. If that happens, there will be a road crash when we come to Report, in which I will be unable to support the Government on a whole series of matters. I hope that those things can be resolved by consensus.
I have spoken for quite long enough, but I have explained why I think that, on the important issue that we are debating today, the best solution in the interim is to use something along the lines of amendment 10 to ensure that general principles of EU law can continue to be invoked. Of course, as the transition goes on, I assume that so much EU law may disappear, but I venture the suggestion that it will continue to be relevant for some time to come.
May I, finally, touch briefly on the three other amendments —297, 298 and 299—that I have tabled? They are very simple, and they concern the use in clause 5 of the words
“any enactment or rule of law”.
I simply say that nobody I have spoken to understands why the words “rule of law” appear in the Bill. Ultimately, a rule of law is a rule of the common law; and in so far as a rule of the common law is displaced by statute, that rule will be displaced, of itself, by the courts. It does not require to be spelled out in legislation. I draw some comfort, on that, from the fact that a very distinguished lawyer who previously worked in this building shares my view that the inclusion of those words is incomprehensible. I do not think that that is a matter that I would necessarily put to the vote, if I was required to do so, but I hope that the Government might be able to provide a positive response on it. I am grateful to the Committee for listening.
It is a genuine pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve), who made his case extremely well and very convincingly—it is supported by many hon. Members on both sides of Committee.
I rise to speak to amendment 46, which is designed to ensure that we keep the charter of fundamental rights in EU retained law; amendment 335, which would maintain the principles of the Francovich ruling after exit day for pre-Brexit cases; amendments 285, 286 and 287, which make provision for existing arrangements to continue during a transitional period; and, finally, amendment 336, which makes provision for retaining existing principles of EU law within domestic law until the end of the transitional arrangements.
Will the hon. Gentleman give way?
I think I could probably get a few more sentences into my stride before taking an intervention, but I certainly anticipate that I will take interventions from the hon. Gentleman.
The debate raises fundamental principles about the transposition of EU law and the important role of this House in holding the Government to account for their commitments. Last week, the focus of the debate was on the Government’s attempt to unravel the Prime Minister’s pledges on the transitional arrangements in her Florence speech, by the imposition of a defined exit day for all purposes. The Minister, the hon. Member for Esher and Walton (Dominic Raab), made a good attempt to defend the indefensible and not commit to the application of the jurisdiction of the Court of Justice of the European Union throughout the transitional period; that was not the Government’s line at the time. It would have been helpful if No. 10 had said a week ago what it said this morning, namely that the Court of Justice will have jurisdiction throughout the transitional period. If that had happened, the Minister would not have been left in such a mess.
That was the focus of last week’s debate, but this week the debate is about securing the proper transfer of the rights and protections of EU law on to our statute book. That is something on which the Government have made strong claims. They have made two very clear propositions about this Bill. The first is that it serves to provide certainty and legal continuity, through the creation of the new category of retained EU law. Indeed, on Second Reading, the Secretary of State for Exiting the European Union said:
“The key point of this Bill is to avoid significant and serious gaps in our statute book.”—[Official Report, 7 September 2017; Vol. 628, c. 344.]
The Government’s second claim is that the Bill
“does not remove any underlying fundamental rights or principles which exist”.
And yet clause 5(4) of this Bill flies in the face of both those claims. That subsection, as has been pointed out, omits from domestic law after exit day the charter of fundamental rights, through which all EU law is interpreted. A failure to transpose the charter into EU retained law creates a gap in our statute book. As the Equality and Human Rights Commission has stated, the Bill, as it stands, will not achieve the Government’s stated aim of non-regression on social justice issues. That is a serious matter, which the House must take account of.
We recognise that steps will be required to make the charter operable in domestic law, and there has been some debate on that already. There is no reason why this House could not direct courts in the UK to interpret retained law by taking into account Luxembourg’s interpretations, such as is the case with the Human Rights Act and the ECHR in the Strasbourg Court. That matters, and I will explain why the inclusion of the charter in retained EU law is critical to maintaining and upholding those rights.
Is the hon. Gentleman about to move on to explain why Tony Blair and Lord Goldsmith fought so hard to obtain protocol 36—I think it was that one—in the Lisbon treaty, which the Conservative party opposed? At the same time as advancing the charter of fundamental rights, will he explain why we cannot pass such legislation as we wish to in this place?
I was not about to go on to that, but clearly I am now. The hon. Gentleman knows that the charter was not binding when it was first adopted in 2000. It was made legally binding by the Lisbon treaty of 2007, which entered into force in 2009. It has, as the right hon. and learned Member for Beaconsfield pointed out, increased in significance, and the rights that it contains have become more visible and correspondingly more effective. Labour supported the charter then, and we support it now, because it has enhanced and improved European human rights protection, and by doing so it has significantly developed the quality of human rights protection in the UK. The wider point that the hon. Member for Stone (Sir William Cash) makes is not relevant to the issue under discussion.
The charter applies only when national authorities are implementing EU law. Does the hon. Gentleman not agree that if it is retained, it risks creating a confusing inconsistency by giving citizens powerful rights to strike down some pieces of legislation, but not others? Is it not a case of doing either the whole thing, or nothing at all?
I will come on to this point, but the charter is key to ensuring that retained law is treated properly and that the same rights of enforcement continue in the future. Without the charter, those rights are significantly diminished and access to them is diminished.
Let me proceed with the point I was making about how the charter goes wider than the Human Rights Act and the European convention on human rights, which I hope I am right in saying the Government accept. As other Members have already pointed out, it was the Secretary of State for Exiting the European Union who relied on the charter in the case he brought before the High Court in 2015, against the then Home Secretary and now Prime Minister, when he was worried that the Data Retention and Investigatory Powers Act 2014 would impact on MPs’ ability to communicate with constituents confidentially. He cited the charter, and his lawyers argued that it went beyond the European convention on human rights and granted further protection. He relied on the charter precisely because it provided greater human rights protection than was provided for by UK law and even by the case law of the European Court of Human Rights.
Despite this, the Government have not indicated which decisions of the Court of Justice of the European Union under the charter they disagree with. Moreover, the explanatory notes to the European Union (Withdrawal) Bill justify the decision to exclude the charter from retained EU law by saying:
“The Charter did not create new rights, but rather codified rights and principles which already existed in EU law. By converting the EU acquis into UK law, those underlying rights and principles will also be converted into UK law, as provided for in this Bill.”
If that were the case, it would be fine, but it is clearly not the case.
Drawing on existing rights, the charter set out a new framework for human rights protection under EU law. The rights contained in the charter may have existed in EU law for decades—the Government are relying on that point—but that is not enough. The whole point of the charter was that nobody could verify those rights or their sources, and as the lawyers among us will know, identifying the source of a right is imperative in securing effective recourse. In his speech, will the Minister therefore clarify whether the Government have succeeded, where others have not, in comprehensively identifying every single source of these rights? If not, how do they plan to uphold the same level of protections for these rights once we have left the European Union, because a right without effective recourse is rendered effectively meaningless?
By compiling and codifying these rights in a single document, the charter in effect created new rights and certainly created new protections. In short, the charter is the most effective key to unlocking vital rights, and to fail to transpose it and make it operable in UK law is to lock away those rights and deny UK citizens the key to accessing them.
On the data protection point on which the Secretary of State relied—my right hon. Friend the Member for East Ham (Stephen Timms) raises it in his amendment 151, which we support—the right to data protection exists in various documents, such as directives and regulations, but it was only by virtue of the charter creating the expressed right to data protection in article 8 that we were given the right to be forgotten.
The rights extended by the charter are not only data protection rights. Such rights start in article 1, which includes the right to human dignity. This does not exist as an enforceable right in common law or statute law applicable to retained law post-Brexit. Will the Minister, when he responds, explain how this right will be enforced after exit day if the charter is not retained?
Will not the hon. Gentleman’s proposals create more uncertainty and raise more questions than answers? For example, considerable reference has been made to the Union, to citizens and to the right to vote and stand in European elections, but is that not at odds with our being a non-member state on our leaving the European Union?
No. The right hon. and learned Member for Beaconsfield answered that point when it was raised by other Members. There are clearly provisions in the charter that would have to be amended to become operable—I made that point a few moments ago—but it includes fundamental rights, so the protections of our citizens will be reduced if the those rights are not carried forward. I will illuminate that point a little further.
The hon. Gentleman proposes that part of the charter should be erased and that it should undergo some kind of surgery before it is applied through UK law. Is it not right that questions of principle and policy should not be debated in relation to this Bill, the purpose of which is to provide legal certainty and continuity, but left for wider parliamentary debate and scrutiny, and indeed the wider democratic process?
I am genuinely puzzled by the hon. Lady’s point because she could make it in relation to all of the several thousands of laws that are being transposed. It could relate to every other part of the Bill. We will have to go through processes of adjustment to ensure their effective operability, but the question that needs to be answered—I hope it will be answered by the Minister when he rises at the Dispatch Box—is: why, uniquely, is the charter of fundamental rights being treated differently and being removed at this stage?
My hon. Friend is making a very powerful case, and my anticipation of the Minister’s speech increases minute by minute as the case is advanced. Does my hon. Friend share my puzzlement, first, that given that the Government’s stated objective for the Bill was to move everything across, the one thing they have decided to leave behind is the charter; and, secondly, that Conservative Members have argued that nothing will be lost by the disappearance of the charter, yet we have already heard powerful testimony in speeches to the contrary? That testimony includes the point raised by my hon. Friend the Member for Nottingham East (Mr Leslie), when he referred to the judgment in the tobacco case, in which the charter clearly had an important impact in enabling the Government to enforce their rights in relation to their desire to have plain packaging—never mind its being the reason why the Secretary of State, in a former life, decided to call on it in trying to sue the Government. Is there not an incompatibility between the two positions?
My right hon. Friend is absolutely right. Like him, I am looking forward to hearing the Minister attempting to square the circle on that one. It is one thing for the Government to argue that the charter needs to be removed, but it is another for others then to argue that it makes no difference. Let me illustrate a few other areas in which the charter does make a difference.
Let us take article 24—it was mentioned earlier—which gives effect to the UN convention on the rights of the child. While we are a signatory to the convention, that does not provide the same legal protection—simply as a convention signatory—as would be provided by the incorporation of the charter. Let us take the right to a fair hearing, which goes beyond article 6 of the European convention on human rights on the right to a fair trial, because it applies to civil rights and obligations, as well as to criminal charges. In the ZZ case, with which the Minister will be familiar, the Court of Justice of the European Union held that the right to a fair trial in article 47 of the charter applied to immigration cases. Significant issues are therefore at stake.
Let us look at article 13, which requires that academic freedom shall be respected. With the possible exception of some Government Whips—the Vice-Chamberlain of Her Majesty’s Household, the hon. Member for Daventry (Chris Heaton-Harris), was keen to see the reading lists and curriculums of university lecturers to make sure they were teaching Brexit correctly—I am sure that Members on both sides of the House agree that academic freedom is an important principle, and it is not secured anywhere else. How do the Government anticipate that these rights will be enforced in the absence of the charter, and which aspects of the EU acquis or UK domestic law could be used to guarantee these rights? That is an important question.
It is not just that excluding the charter will diminish rights; the charter has transformed access to human rights protection. As the House of Commons Library briefing makes clear, it is not just that the charter contains more rights than the European convention on human rights and codifies existing rights in one place. When we compare the charter with the Human Rights Act, we see that it has a wider class of applicants who can use it. Anyone with a sufficient interest can apply for a judicial review based on the charter, and it can also be relied on in other types of case—for example, employment tribunal claims—that are within the scope of EU law. By contrast, claims under the Human Rights Act can only be made when an individual is a victim of a rights violation.
Our rights always used to be guaranteed, and will be guaranteed once we have left, through a combination of common law and statute law. I do not understand what threat the hon. Gentleman has in mind regarding these rights, because if any threat emerged it would be struck down either by the Supreme Court or by Parliament.
I am puzzled by that point, because EU-retained law will effectively become statute law, and that will be carried forward by the application of the charter. It is not quite clear what the right hon. Gentleman is getting at.
I listened carefully to what the hon. Gentleman said about article 6 of the European convention. I think that he said it applied only in criminal cases, but having looked at the article it enforces civil rights as well. I remember from my own experience that we took it into account in immigration cases, other tribunal cases and, I think, in some applications of procedures of the House that may or may not be compatible with that right. The measure is much wider than he suggests, so I do not think he was exactly right about that.
As I understand it, it does not apply in all civil cases—only civil rights and obligations under the convention, so it is effectively a narrowing if we lose it.
The hon. Gentleman said that he did not understand the point I was making. Our rights will be guaranteed once we have left by our Supreme Court, and by common law or the application of our statute law. I cannot think of a right that he and I value that will be destroyed because we have not incorporated the charter. I think that they will be guaranteed by those ancient and tested methods.
We are talking about statute law, and about rights such as the one on which the right hon. Gentleman’s friend and colleague, the Secretary of State for Exiting the European Union, relied. I think that that point is clear.
Returning to the comparison of the charter with the Human Rights Act, as well as the wider class of applicants for which it provides, it allows for stronger remedies. If any national court finds that any national law is incompatible with a directly effective provision of the charter, it must disapply contravening primary legislation or quash secondary legislation. We have exercised some of the arguments around that issue, but that is much stronger than a notification of incompatibility. We should be in no doubt that l